State ex rel. Crenshaw v. Joseph

Lead Opinion

SAYRE, J.

This information in the nature of quo warranto was filed by the appellant Crenshaw, in the name and behalf of the state, aud sought a judicial determination to the effect that defendants were not entitled to hold office as commissioners for the city of Montgomery, as they were assuming to do. By their answer, defendants justified their assumption of official power and functions under an appointment by the Governor, alleging that their said appointment was made in pursuance of the act “to provide and create a commission form of municipal government and to establish same in all. cities of Alabama,” etc.; the same being-shown at pages 289-315 of the printed volume of the General Acts of 1911. The act here referred to provides for a commission of five, to consist of the then mayor and four others to be appointed by the Governor, who should exercise all the powers of the municipal government. The legislative history of this act, as evidenced by the journals of the two houses of the Legislature and the enrolled act on file in the office of the Secretary of State, is the history of an unimpeachable exercise of legislative power, as all parties concede, in every respect save one. At one point, a difference of opinion lias arisen out of facts which, we will here state: House Bill 322, out of which the act in question was developed by a course of legislative action, provided for a commission of three, to consist of the mayor and two others, who should he elected by the people. In this shape, the hill passed both houses and was signed by the Speaker of the House of Representatives and the Lieutenant Governor, presiding officer of the Senate,, on March 22, 1911. The journal of the House next shows that on March 31st, the House being then in session, “the House concurred in and adopted the amendment offered by the Governor to the H. Bill 323, said Governor’s amendment being as follows;” and here the amendment, which provided, among other things, for a commission of five, is set out at length. The Governor’s message bears date March 31, 1911, and was spread upon the journal in pui’suance of the Constitution (section 125), 'which requires in such cases that the House in which the hill originated, and to which it is returned, “shall enter the objections at large upon the journal and proceed to reconsider” the bill. In the meantime, as the journals show, the Legislature, on March 22d, adjourned to the 24th, and on the 24th to the 29th, and on the 29th to the 31st. Of intervening days, March 26th fell on Sunday. The appellant’s contention is that, under the Constitution, the bill became a law in its original shape by reason of the Governor’s failure to sign or return the same, with the amendments of his proposal to the House of Representatives, within six days, and that what further was done with the bill is of no consequence, as being wholly without the power of the Legislature. ■

So much of the Constitution as is necessarily involved in the decision of the question presented reads as follows: “Every bill which shall have passed both houses of the Legislature, except as otherwise provided in the Constitution, shall he presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objection at large upon the journal and proceed to reconsider it. * * * If any bill shall not be returned by the Governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent the return, it which case it shall not be a law; but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after the reassembling, otherwise it shall become a law.” The authorities are unanimous in holding that the adjournment of the Legislature contemplated in the quoted clause of the Constitution is a final adjournment. It seems necessary, also, to hold that the limit of time during the session — that is, where there has been no final adjournment — within Avhich the Governor shall return a bill in order to prevent it becoming a law without his approval and signature, or, perhaps, it would better express the intent of the provision to say the period of time during which the Governor has the right to consider a bill without its becoming a law independently of him, must be measured by calendar days; for otherwise there would be no reason for excepting Sunday, on which day it is not the practice of legislative bodies in this country to sit for the business of legislation. When occasionally Legislatures have found it convenient or necessary to extend their sessions over into Sunday, it has been treated as an extension of tlxe previous clay. But the sixth must be a legislative day also; for the Governor has six days in which he may consider the bill, and the requirement is that the bill, in case it be not approved, be returned to the house in which it originated. No congregation of the members of a house can, in a constitutional sense, constitute the House during the period of a recess, or exercise any of its constitutional functions. Nor can the return be made to any officer of the House when it is not in session. As was aptly said by Governor Jones in a message to the Senate in 1893: “A message from the executive to either branch of the Legislature, delivered to an officer of the body, who may not even be a member, and when it is not in session, for transmission and delivery to ‘the House’ when it shall reconvene, is an anomaly in parliamentary law. Messages from the executive to either branch of the General Assembly are invariably delivered to the House while in session, and not to the officers for them. Such has been the immemorial-usage, and the same custom obtains concerning messages from one house to the other.' There is neither parliamentary nor statute law which confers any functions upon the secretary or clerk of either house, while they are in recess, concerning the reception of messages from the other house or from the executive. Parliamentary law absolutely divorces clerks and secretaries from such functions, and is so exacting in this regard that one house will not receive a message from the other if the house sending the message is not in session. Indeed, it would seem that the express language of the Constitution, which requires the return ‘to the House,’ would repeal any parliamentary or statute law or custom, if such had obtained, whereby the return might he made to the clerk or secretary of the House, while it was not in session, for delivery to it when it reconvenes.” — Sen. Jour. 1892-93, 304-310. Like considerations, and others arising out of the fact that during the period of a recess the Governor may find it exceedingly inconvenient, if not impossible, to communicate with the presiding officers of the houses, not to mention the element of unseemliness which may find its way into such an effort, lead to the conclusion that a bill may not be returned to the Speaker of the House or the presiding officer of the Senate in recess. So, then, a bill must- be returned to the House while in session,, which is to say that the sixth and last day during which the Governor may retain a bill without its becoming a law, if he sees fit to exercise his right of examination to the utmost, must be a legislative day. We conclude, also, that if the house in which a bill originated is in session on the sixth day after a bill has been presented to the Governor, so that the Governor has then an opportunity to return the bill, and there is a failure to return it, his constitutional right to return is exhausted. Any other rule would lead to the result that, with the daily passage of bills originating in either house, the limitation of time would be ineffectual, unless the Legislature should each clay remain in session until the last minute of the day — a result not contemplated, of course. But where a return is prevented by recess — an adjournment, not final, .but for more than a day — the two days after the reassembling in which the bill may be returned must of necessity be legislative days. On one the house reassembles as an organized body; on the other the bill may be returned to the house so organized.

Relator offered to show by a memorandum made at the time upon the bill by the Governor’s recording secretary, and by other parol proof, that the bill reached the Governor’s office and was delivered into the hand of his recording secretary on March 22d, and that this was the customary way of dealing with bills. The bill is not traced directly to the Governor’s hand or notice before the 31st, the day on which he returned it to the House. If these facts constituted a presentation to the Governor, within the meaning of the Constitution, and if no rule of law or imperative policy, such as has always prevailed in cases of the character and in view of which the Constitution may be regarded as having been framed, stood in the way of a resort to parol evidence of them, then consideration of the dates to which we have referred, in connection Avith the interpretation given already to the clauses of the Constitution in question, must result in a judgment denying the validity of the act under which the respondents are holding office:

Cases have been cited from other jurisdictions to sustain the appellant’s contention that the presentation shown by the memorandum was a presentation to the Governor. In Wrede v. Richardson, 77 Ohio St. 182, 82 N. E. 1072, 122 Am. St. Rep. 498, the ruling was that an entry in a record which Avas kept in the office of the Governor, pursuant to a requirement of law, and with his acquiescence used to perpetuate evidence of the presentation to him of bills which had been passed by the General Assembly, Avas competent and sufficient to prove such presentation. In State v. Michel, 52 La. Ann. 936, 27 South. 565, 49 L. R. A. 218, 78 Am. St. Rep. 364, it appears that the Constitution of Louisiana con-' tains an imperative provision that, “as soon as bills are signed by the Speaker of the House and President of the Senate, they shall be taken at once, and on the same day, to the Governor by the clerk of the House of Representatives, or secretary of the Senate,” and the validity of the act there in question was submitted to the court on an agreed statement of fact Avhich stipulated the day of its presentation to the governor. The bill having been presented to the Governor between 10 and 11 o’clock at night, and the Governor having refused to receive it at that hour, the question litigated was whether such a tender of the bill was a constitutional presentation of it, and whether the fact that the Governor declined then to receive it rendered that presentation nugatory and ineffective. We have no doubt the question was properly decided against the Governor’s contentions. So, too, in Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432, the case was made upon agreed facts which stipulated that on a certain day the bill was, by the enrolling committee of the Senate, delivered to the Governor for his consideration. No question was raised concerning the fact of presentation; whether the Senate, by adjournment, had prevented a return, and whether the court had jurisdiction to compel the Governor, by mandamus, to cause the bill to be authenticated as a statute, are questions which constitute the entire subject-matter of the opinion. The same is true of State v. South Norwalk, 77 Conn. 257, 58 Atl. 759. The court in that case took occasion to say that “it [a bill] cannot be deemed to have been presented to him [the Governor] until it has been in some way put into his custody, or into that of some one properly representing him, in such manner that he has a reasonable opportunity to inspect and consider it,” citing Opinions of the Justices, 99 Mass. 636. The court further said, “Due provision was made, shortly after the adoption of the Constitution, for such attendance on The Governor, or the person administering the office of Governor,’ as might serve to secure his proper representation at the executive offices during the sessions of the General Assembly,” citing the statutes of Connecticut. The case of Soldiers’ Voting Bill, 45 N. H. 608, decided by the Supreme Court of New Hampshire in 1864, holds with the appellant on this point. In that case it was “assumed to be established” that the bill was “carried by the assistant clerk of the Senate to the executive chamber, in the state house, in accordance with the customary mode of presenting bills to the Governor, and was laid upon the table of the Governor, who was then absent from the room, but who had been there during the morning, and was expected to return that afternoon, but did not; that when said bill was thus laid upon the Governor’s table some members of the executive council were present, and also Mr. Barrett, the State Auditor, who was the son-in-law of the Governor, and who had a table there in the executive chamber for the transaction of his business, near that of the Governor; that the assistant clerk of the Senate, when he entered the executive chamber with said bill, announced that he had a bill for the Governor.” The Governor saw the bill on the next day, and the point at issue was whether there had been a presentation when the bill-was laid upon the Governor’s table. In brief, the conclusion that the bill had been presented when laid upon the Governor’s table was rested upon the absurdity of requiring the officers of the Legislature, in order to perform their duty, “to follow the Governor wherever he may chance to go, whether in the state or out of it, upon his private business as well as public, and present bills to him in person wherever lie may happen to be.”' The clear effect of the decision was that the bill must be deposited in the usual place, and the attention of the Governor, secretary, or other person in charge of the room called to the fact. What different effect was given to the presence of members of the executive council with whom, under the Constitution of New Hampshire, the Governor Avas required, from time to time, “to hold a council for ordering and directing’ the affairs of the state, according to the laws of the land,” or to the presence of the Governor’s son-in-law, or whether the janitor would not have served the purpose as well, does not appear. At any rate, the case would seem to permit the authority of legislative acts to rest upon a very uncertain basis. Our OAvn case of State v. Porter, 145 Ala. 541, 40 South. 144, is also relied upon. That case dreAV into question the right of commissioners, appointed by the Governor, to hold an election to locate a county seat under the act of March 3, 1903. — Gen. Acts 1903, p. 117. The act provided for the appointment of commissioners AAdienever a majority of the qualified electors of a county should “petition the Governor in writing.” Relator relied upon a petition of Avithdrawal. Justice Anderson said: “The law provides that the petition must be presented to the GoA^ernor, meaning that it must be lodged with him or his official force in some formal manner, so as to become an official document. And section 2 (page 119) of the act requires ■the Secretary of State to furnish a copy of said petition to the county site commissioners Avhen he issues to them their commissions. Thus it must be observed that this original petition must get within the actual custody and control of the GoArernor. It therefore stands to reason that, in order for any of the signers to AvitlidraAV therefrom, they must do so with a degree of formality corresponding with that contemplated by the bnv in presenting the original petition.” And it was held that a AvithdraAval petition, presented to Gapt. Sedberry, who had been sent by the Governor to Cleburne county to investigate the bona fides of the original petition, but Avhich neA'er in fact reached the Governor’s hands, Avas of no avail. Clearly that case rested upon considerations Avhich have no place in the case at hand; for there no question of legislative procedure was involved. Per contra to the rule in New Hampshire, in Massachusetts, in a case where the Governor was out of the state when a hill passed the Legislature, the Supreme Judicial Court reasoned that as, the duty of revisal by the Governor was a personal duty, with which he alone was intrusted, it was necessary that the bill should he laid before him personally; that the Governor, whose duty it was to sign the bill, was entitled to have it before him, that he might have the opportunity to sign or return it with his objections. In this state, we have no constitutional or statutory provision requiring the presentation to be made to the Governor within any fixed time, nor any requiring an official record of such presentation to be kept. There is therefore no presumption of duty discharged by other officials to set over against the presumption that the Governor has observed the law, nor any record required by law to be kept, on which to place a finding that the bill was presented to the Governor more than six days before its return to . the House. What effect the practice of subordinate officers of the two houses to present bills to the Governor’s recording secretary and of the Governor’s acquiescence in that practice should have in determining the sufficiency of such presentation may be left where we find it, with the apparent weight of reason and authority opposed to appellant’s contention; for at some time prior to its return to the House the Governor took cognizance of the bill. The unavoidable question is whether parol evidence should have been received to show the point of time at which presentation was made, and this we have decided upon considerations which will be stated.

Attentive regard for the authorities and the reasons suggested pro and con has convinced us that, whatever parol evidence may have been available to appellant in support of his contention as to the fact, and hoAvever cogent that evidence may seem to the mind unconstrained by the rules of Iuav and those considerations of vital policy obtaining Avith the courts whenever they come to the task of passing upon the constitutional validity of the acts of the co-ordinate Legislature, Ave aré concluded by the legislative record of the law in question and the presumptions arising out of that record in favor of its constitutional enactment.

No view can be entertained Avhich avouIcI cast the least doubt upon the court’s complete acceptance of the doctrine that the mandates of the Constitution are the supíneme Iuav to all departments of the government, or the court’s readiness to enforce the supreme Iuav by declaring a legislate act invalid, where that fact is made to appear by competent evidence. But in this case the journals of the two houses and the enrolled bill, signed by the Governor and lodged Avith the Secretary of State for promulgation as laAv, present the official history of one continuous dealing with one bill, House Bill 323. On its face, the record is that of a statute valid in every particular of its enactment. The Constitution requires that each house shall keep a journal of its proceedings, and of the record thus made the courts take judicial cognizance. — Moody v. State, 48 Ala. 118, 17 Am. Rep. 28; Montgomery Beer Bottling Works v. Gaston, 126 Ala. 425, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rep. 42. And the decisions of this court have settled the proposition: “That in determining whether a bill enrolled, signed by the president of the Senate and the Speaker of the House of Representatives, and approved by the Governor, Avas in fact regularly and constitutionally enacted in all its provisions, and contains all the provisions which were enacted by the General Assembly, recourse can be had only to the bill itself as so enrolled, signed, and approved, and to the journals of the two houses of the Assembly. The bill itself, wrought by such enrollment, signatures, and approval into an apparently valid enactment of the legislative department of the government, is a record of its own existence and integrity, in many jurisdictions constituting the only record to be looked to, and carries with it a presumption that it is tbe bill wbicb tbe two bouses concurred in passing; and this presumption can only be overcome by tbe contrary being made to affirmatively appear from that other record, tbe journals — tbe bound volumes of tbe proceedings transcribed, and signed by tbe presiding officers and deposited with and kept by tbe Secretary of State — of tbe respective bouses of tbe General Assembly.” — Robertson v. State, 130 Ala. 169, 30 South. 494. And in Ex parte Howard-Harrison Company, 119 Ala. 484, 24 South. 516, 72 Am. St. Rep. 928, the language of tbe court is: “No other evidence is admissible. Tbe journals can neither be contradicted nor amplified by loose memoranda made by clerical officers of thé bouses. Nor avüI it be presumed from tbe silence of tbe journals on a matter of which it is proper for them to speak that either bouse has disregarded a constitutional requirement in tbe passage of an act, except in those cases where tbe organic law expressly re: quires tbe journals to show the action taken, as where it requires the yeas and nays to be entered.” But appellant says it is tbe elementary duty of tbe court to know tbe statute law of the state, though judicial knowledge is not tbe personal knowledge of tbe judge, and for that reason be has tbe right to resort to any source of information which in its nature is capable of conveying to tbe judicial mind clear and satisfactory information, and it is urged that, since tbe relator stood ready to furnish evidence for informing the judicial knowledge, of greater moral -weight than the mere presumption which arise in favor of the observance by the Legislature and the Governor of constitutional mandates, and to the effect that those mandates were not observed in fact, the court cannot avoid knowing that in fact the Governor did retain the bill for more than six days after it had been presented to him without signing it, and that thus it became law in its original shape. It is to be conceded that there may be cases in which the courts must enter into aliunde investigations as to the existence of a statute, or as to the time when it received executive approval by signing, or as to the time when it became law without such approval (Walker v. Griffith, 60 Ala. 367; Gardner v. Collector, 6 Wall. 499, 18 L. Ed. 890), though, to paraphrase the language of Judge Miller in the last-named case, we should reasonably expect to find a duty so. very important as that of making some official written statement as to when a bill is presented to the executive, and when signed by him, the neglect of which may be followed by the most serious consequences prescribed by some positive and express provision of the Constitution, or, at least, by some act of the Legislature. The court would repudiate any record or any part of any record which depends upon forgery or other unlawful interpolation for its semblance of law, and such forgery or interpolation might be proved to the court as in the case of any other instrument which the court- is bound to know; and where the Constitution requires, as a condition to the validity of a statute, that certain facts in respect to its legislative history must appear upon the journals, the court gives effect to the supreme law by declaring void a statute with a defective record; and where two irreconciliable laws are approved on the same day, or rights may depend upon the exact date of an approval which is not denied, nothing appearing in that respect, necessarily evidence is taken to make certain a fact otherwise at large. Here the case is different. Appellant does not deny the integrity of the record of the act under which defendants claim; nor does he claim that it is required by any rule of Constitution or statute to show more than it does. As before said, the statute in its last shape is perfect in its appearance, so far as concerns the regularity of its enactment; and its genealogy shows no break. The record history of the bill does not end with its first pasasge through the Legislature. It is resumed at a later day in the journals of the two houses, that of the House of Representatives showing that the bill was returned without approval, and with the proposal of amendments which would meet the Governor’s objections. Subsequent dealing with the bill, down to and including the Governor’s approval of it in its last shape, is admitted to have been perfectly regular, if the return was made in time. Appellant would impeach the effect of the record of the bill in its last shape by evidence in pais of a fact, concerning which a proper record is required to show nothing, contrary to what was the necessary finding of the Governor and the Legislature. This on a comprehensive theory that judicial knowledge must embrace every act of every official concerned in any way in the business of passing laws. Now, when the bill went- back to the Legislature, it was within both the power and duty of that body to know whether the bill had become a law by reason of the Governor’s failure to return it within the time limited by the Constitution, thus foreclosing all right to deal with the subject-matter except by a new bill, or whether the legislation thereby proposed was still in fieri and subject to amendment. Its power to proceed depended upon a question of fact which its sworn duty required it to decide, and which it was competent to decide, and which it did decide, thereby establishing, by necessary inference, the fact in accord with the implication of the Governor’s return. On such a record, the presumption is conclusive that the facts were consistent with the legislative assumption of power. The principle here applied is set forth in the case of United States v. Arredondo, 6 Pet. 691-729 (8 L. Ed. 547), in these words: “It is a universal principle that, where power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter, and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within ■the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive ([Marbury v. Madison] 1 Cranch, 170, 171 [2 L. Ed. 60]), legislative ([McCulloch v. Maryland] 4 Wheat, 423 [4 L. Ed. 579]; [Satterlee v. Matthewson] 2 Pet. 412 [7 L. Ed. 458]; [Craig v. Missouri] 4 Pet. 563 [7 L. Ed. 903]), judicial ([Perkins v. Fairfield] 11 Mass. 227; [McPherson v. Cunliff] 11 Serg. & R. [Pa.] 429 [14 Am. Dec. 642], adopted in [Thompson v. Tolmie] 2 Pet. 167, 168 [7 L. Ed. 381]), or special ([Rogers v. Bradshaw] 20 Johns. [N. Y.] 739, 740; 2 Dow. P. Cas. 521, etc.), unless an appeal is provided for, or other revision, by some appellate or supervisory tribunal, is prescribed by law.” The rule here stated confines judicial knowledge to the record, where the record is authentic and complete in itself.

This rule is based upon practical considerations of the utmost importance. It Avould lead to intolerable conditions if the validity of statutes, evidenced in every way provided for authentication by the common law, by the Constitution, and by statutes made to that end, and under which the affairs of individuals and communities may have been long administered, were permitted to depend upon the precarious memory of witnesses and the uncertainties of parol proof. It is clear that if one of the steps necessarily involved in the enactment of a law, and not required by the Constitution to be affirmatively shown, or for the-due exposition of which no law has been made, may be shown by evidence in pais not to have been taken, or not to have been taken properly, on the theory that the court knows all such things, “the entire subject of what the law is is withdrawn from the protection of the rules devised and applied for the purpose of securing certainty where doubt would be intolerable. The prompt aversion of the legal mind from the consideration of evidence in pais to shoAV the invalidity of an officially promulgated statute is justified by a contemplation of the consequences which would follow.” — Wrede v. Richardson, supra. Our conclusion that the trial court properly refused to receive the testimony offered by the relator in impeachment of the act, and that the memorandum stamped by the recording secretary upon the bill as first enrolled is of no consequence, to the extent, at least, it is inconsistent with the course of the Legislature, which treated it as untrue in fact, is required by the necessities of organized society, and is sustained by the weight of well-considered authorities in those states where these and closely allied questions have been carried to the courts for decision. — People v. McCullough, 210 Ill. 488, 71 N. E. 602; Wrede v. Richardson, supra; Danielly v. Cabaniss, 52 Ga. 211; Sherman v. Story, 30 Cal. 274, 89 Am. Dec. 93; Rumsey v. People, 19 N. Y. 41; State ex rel. Reed v. Jones, 6 Wash. 450, 30 Pac. 201, 23 L. R. A. 340, and note; Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 14 L. R. A. 459, and note, 25 Am. St. Rep. 230.

At its last session, the Legislature passed four different acts on the subject of commission government for municipalities in this state. On March 31st, the Governor approved an act providing for the appointment of commissioners in all cities now having, or which may hereafter have, a population of as much as 100,000 according to the last federal census, or any such census which may hereafter be taken. — Gen. Acts 1911, p. 204. We judicially know that this act applied at this time to the city of Birmingham alone. On April 6th an act was approved, providing for a commission in cities now having, or which may hereafter have, a population of as much as 25,000 and less than 50,000 according to the last census.-^Gen. Acts, p. 289. This act applies to the city of Montgomery alone, as populations now are. April 8th an act was approved for the government by commission of cities and towns which, to quote the act, “now are not, or hereafter may not be, within the influence or operation of any other valid legislative enactment authorizing or adopting the commission form of government.” — Gen. Acts 1911, p. 330. Under this act, a commission for the city of Mobile has been organized, and a commission for any other town or city in the state, except Birmingham and Montgomery, might have been organized but for the passage, on April 21st, of an act providing for government by commissioners in all cities now having, or which may hereafter have, a population of more than 1,000 and not more than 25,000.- — ■ Gen. Acts 1911, p. 591. The effect of this- last enactment was to leave the city of Mobile as the only city in the state which might adopt the commission form of government, as provided in the act of April 8th, and the government of that" city has been organized under that act. • These acts differ much in detail; but the one broad pujóse common to them is to abolish the government of municipalities by mayors and boards of aldermen, and to substitute therefor a board of commissioners to be elected generally by the people, but in all cases, save those provided for in the act of April 8th, the first board of commissioners was to be appointed by the Governor. In the case of cities falling within the operation of the acts of April 8th and 21st, it is provided that a vote of the people be first taken to ascertain whether they -desire a change in the form of government. By the acts of March 31st and April 6th, no opportunity is given for an expression of the popular will; but the appointment of commissioners in the first place is made mandatory upon the Governor. On these acts and the differences to be noted in their provisions, some only of which have been mentioned, appellant bases an argument that the act -of April 6th is unconstitutional as being a local act. If the act is local it is unconstitutional. It will be observed that these acts, taken together, arrange the cities and towns of the states into four classes: (1) Cities and towns having a population between 1,000 and 25,000; (2) those between 25,000 and-50,000; (3) those between 50,000 and 100,000; and those of 100,000 and over. And provision is made by which cities shift from one class to another as their populations change. The Constitution does not pro-' Mbit classification on substantial grounds; and this court lias recognified differences in population as a proper basis for tbe classification of municipal corporations. — Griffin v. Drennen, 145 Ala. 128, 40 South. 1016. But in State v. Weakley, 153 Ala. 648, 45 South. 175, ruling here, too, in accord with the authorities generally, it is held that indiscriminate classification as a mere pretext for the enactment of laws essentially local or special cannot be allowed. The argument for appellant is that there are no essential differences between cities of these different classes, such as call for differences in the regulation of their municipal powers and local government; and, further, that these four acts are in pari materia, and must be construed as one act, and that, Avhen considered so and in connection Avith Avell-knoAvn agitations of public opinion going on at the time, it is apparent that the purpose was to legislate to meet local conditions and demands, rather than to frame a code of laws applicable to all cities similarly situated. It is our duty to sustain these acts, unless it is clear, beyond a reasonable doubt, that they violate some proAdsion of the fundamental law. The argument against them presents a novel application of the doctrine of construing statutes in pari materia. To link a number of separate acts together, each unobjectionable in itself, for the purpose of destroying all or any of them, would, so far as we are advised, be without precedent. We think rather that each of these acts is to be judged on its merits as they appear in the act itself. Classification by numbers having been recognized as legitimate, it must be a task of great difficulty to say just AArhen the Legislature has overstepped the bounds of its poAver in arranging a classification on that basis. And Avhile onr knoAAdedge, in an undefined and irresponsible way, of conditions and opinions operating upon the Legislature at the time of these acts may be such as to create suspicion that the effort was to provide differently for each of the three largest cities of the state on consideration of local demands, not based on essential differences of situation or the real interests of their inhabitants, we cannot look beyond the act itself for motives. A case might occur in which this basis of classification might be pushed so far that the court would be required to pronounce it unconstitutional. The Supreme Court of Pennsylvania, whose decisions on this subject we have followed, found such a case in Ayar’s Appeal, 122 Pa. 266, 16 Atl. 356, 2 L. R. A. 577; but we think that condition is not sufficiently demon-stated by this statute. In form, at least, the act is not open to the objection taken to it. The range of numbers in the class in which the city of Montgomery falls is fairly large; and we are unable to say with perfect assurance that the Legislature may not have found differences between cities of this class and others having-populations- of less than 25,000 or more than 50,000 which justified differences in organization and local regulation. While not disposed to encourage this character of legislation, we cannot in this case say it transcends the constitutional power of the Legislature, and so are constrained to withhold interference.

Our conclusion is that the judgment of the court below must be affirmed.

Affirmed.

Mayfield and Somerville, JJ., concur. Dowdell, O. -L, not sitting.

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Concurrence Opinion

ANDERSON, J.

While concurring in the conclusion and in the affirmance of the judgment of the trial court, I wish to ground my action in doing- so upon reasons other than those advanced in the opinion of my Brother Sayre. I think tliat it may he conceded that there was such a presentation to the Governor on March 22d, as disclosed by the stamp upon the bill by the recording secretary of the Governor, and his receipt for same upon the book kept by the enrolling clerk of the House, and that the position assumed by Justices Simps'on and McClellan on this proposition is sound; yet I am of the opinion that the bill so presented did not become a law because of a default on the part of the Governor in failing to return the same within the time prescribed by section 125 of the Constitution of 1901.

Section 125, among other things, provides: “If any bill shall not be returned by the Governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the Legislature, by its adjournment prevent the return, in which case it shall not be a law; but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after the reassembling, otherwise it shall become a law” etc. (Italics mine.) It is manifest that the Governor is given six full calendar days; therefore, excluding March 22d and the interventing Sunday, the sixth day was March 29th, and the Governor had all of that day within which to get it to the House, and could not be in default, unless the House was in session contemporaneously with the expiration of his time. If the House is at recess upon the expiration of the time given the Governor for the consideration and retention of bills, he then has two legislative days after the House reassembles within which to return bills. All seem to agree that the six days, which excludes Sunday, means calendar, as distinguished from legislative days, and that the other two days given mean legislative days; then, to my mind, it would be monstrous to charge the Governor with calendar days in computing the time, and at the same time credit him only with legislative or fractional 'calendar days, for the purpose of striking down a solemn legislative enactment. In other words the contention is that the Governor must return the bill within six calendar instead of legislative days, yet when the sixth day arrives, and although he is given six full days within which to return the bill, he is in default if he fails to get it to the House while in session on said sixth day, notwithstanding it may assemble early in the morning and recess or disburse within a few minutes thereafter and until some future day. To adhere to this contention, as some of my Brothers seem inclined to do, is not only inconsistent, but is, to my mind, violative of the letter, spirit, and intent of section 125 of the Constitution. The Constitution does not give the Governor five full calendar days and so much of the sixth day only as may be covered by the session of the House on said day, but gives him six full days, whether the House is or is not in session; and he is only required to get it to the House on said sixth day, in case it happens to be in session up to the expiration of same, or until 12 o’clock that night.

_ “Recess” has a plain and well-known meaning, when applied to legislative bodies. It is defined in Webster’s International Dictionary, par. 3, as follows: “Remission or suspension of business or procedure; intermission, as of a legislative body, court, or school.” I doubt if there was a single member of the constitutional convention who entertained the slightest doubt that recess did not mean every intermission or suspension of the legislative body, as distinguished from the previously known Christmas holiday; and they did not mean to make it cover and apply only to the customary Christmas holidays, for the reason that the same convention changed the time-for the legislative sessions from November to January, thus, in effect, practically excluding Christmas. It was evidently intended that “recess” should cover any suspension or remission of either house short of a final adjournment, whether it be from one day to another, one week to another, or one month to another. Therefore, if the House was not in session up to 12 o’clock of the night of March 29th, the Governor was necessarily prevented from returning the bill, if he saw fit to consider and hold it the full time given him under the Constitution; and he had two legislative days after the reassembling of the House within which to return said bill, and which the record shows he did. “Words of common use are to be understood in their natural, plain,, ordinary, and genuine signification, as applied to the subject-matter of the enactment.”' — Endlicli, Interpretation of Statutes, § 2, “When the language is not only plain, but admits of but one meaning, the task of interpretation can hardly be said to arise (and these incidental rules which are mere aids, when the meaning is clouded, are not to be regarded.) * * * It is not allowable, says Vattel, To interpret what has no need of interpretation.’ The Legislature must be intended to mean what it has plainly expressed; and consequently there is no reason for construction.”— Parks v. Stale, 100 Ala. 653, 13 South. 756.

The Journal does not recite the arrival of 12 o’clock and the adjournment of the House, but merely shows that the House adjourned on the night of the 29th of March, and is silent as to the hour; therefore it did not adjourn after 12 o'’clock, but must have adjourned before the 30th, and presumably before 12 o’clock, and it was not therefore in session contemporaneously with the expiration of the time given the Governor within which to return the bill. This' presumption is strengthened by the subsequent receipt and consideration of the bill, and which was a legislative determination that the Governor was not in default on the night of the 29th, and that a return of the bill on said night was prevented by a recess of the House before his time for returning same had expired. Nor do I think that the trial court erred in refusing to appellant the right to show by parol that the House adjourned the morning of the 30th, instead of on the 29th of March, as recited in the Journal, as 'this would impeach or contradict the legislative record by parol, and which should not be permitted.

' It is my opinion that the act in question was legally passed, and that the act, as presented to the Governor on March the 22d, did not become a law. I therefore concur in the affirmance of the judgment of the circuit court.

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Dissenting Opinion

SIMPSON, J.—

(dissenting.) — I hold that, even though the law may not specifically provide how the recox’d shall be kexxt ixx regard to bills which are passed and transxnitted to the Governor for approval, yet, if a record is in fact kept and preserved in connection with the proceedings of the Legislatxxre,- the court should have the benefit of that record in tracing the history of the bill. If it is true that a book is kept by the clerical officers of the Legislature, in which the recording secretary of the Governor signs receipts for bills whexx px*esented, and that book is, with the other papers required by law to be filed in the office of Secretary of State, filed in said office, said book should be admitted in evidence by the court.

I hold, also, that the record kept by the recording secretary of the Governor, showing the dates when the bills are presented to that office, and his official stamp on the bill, should have been adxxxitted in evidence. These are not in the nature of parol testimony, hut constitute the official record of the history of the bill, through its various stages, until it becomes a law.

For these reasons, I dissent from the opinion of the majority of the court.

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Dissenting Opinion

McOLELLAN, J.—

(dissenting.) — The journals of the House of Representatives and of the Senate show that House Bill 323 was signed by the Speaker of the House and by the President of the Senate on March 22, 1911. Its title foreshadowed an act “to provide and create a commission form of government and to establish same in all cities of Alabama which now have, or may hereafter have, a population of as much as twenty-five thousand and less than fifty thousand,” etc. It also appears from these journals that on March 22, 1911, the bodies adjourned to March 24, 1911; that on March 24, 1911, they adjourned to March 29, 1911; and that on March 29, 1911, they adjourned till March 31, 1911.

It is. con ceded that there is no allusion in the journal of either body to House Bill 323 oh March 24th and March 29th, the days on which the bodies were in session. On March 31, 1911, the House Journal recites that the House concurred in and adopted the amendment proposed by the executive to House Bill 323, setting out the amendment proposed by the Governor, as well as the executive’s message, dated March 31, 1911, in that connection.

The respondents would justify their tenure of the offices of commissioners of the city of Montgomery upon the proposition that the amendment proposed by the executive on March 31, 1911, became a part of the act establishing the commission form of government in the city of Montgomery.

Under the bill as signed by the presiding officers of the two houses on March 22, 1911, two commissioners, with the mayor, were to constitute the governing body of the city; the two commissioners to be elected by the people. The amendment proposed by the executive provided for a commission of five, four of them to be appointed by the executive, and the then mayor to be the fifth.

The relator (appellant) insists that the amendment proposed on March 31, 1911, by the executive, and on that date adopted by the houses, never became a part of the act in question, for the executive’s failure or inaction for more than six days after the presentation of the bill to sign it, or to veto it, or to propose an amendment thereto, according to the requirement of section 125 of the Constitution, operated to impress the act,.as signed by the presiding officers of the two houses on March 22,1911, with the character and quality of a complete statute, incapable of change or amendment or repeal, save in and by recourse to the constitutional methods of changing, amending, or repealing that which is hlready law.

It thus appears that the solution of the issue presented is to be found in the determination of the inquiry, Did the amendment proposed, March 31, 1911, by the executive become law? What is the km is a matter, necessarily and in respect of finality of pronouncement, committed for decision to the judicial department of the government, when properly invited to do so.— Cooley’s Const. Dim. pp*. 76, 77, 131, 133, 228; Walnut v. Wade, 103 U. S. 683, 689, 26 L. Td. 526; Town of South Ottawa v. Perkins, 94 U. S. 260, 267, 24 L. Ed. 154; 8 Cyc., pp. 806, 807, 843.

In this instance, the judicial function is invoked to determine whether the amendment suggested by the executive became law under procedure conformable to constitutional requirements: It is’ only by observance of those requirements that law may be enacted; and whether such requirements have been observed in the given case is the subject of judicial inquiry and- determination. — Jones v. Hutchinson, 43 Ala. 721, 724, 725; Moog v. Randolph, 77 Ala. 597, 599; Cooley, pp. 186, 187, Gardner v. Collector, 6 Wall. 511, 18 L. Ed. 890; Town of South Ottawa v. Perkins, 94 U. S. 260, 268, 269, 24 L. Ed. 154. Whether these constitutional requirements- were, in a particular instance; -observed-is a question solvable alone by the court in the lights' of its satisfactorily advised judicial Imoioledge, ■ and/so necessarily excluding the-advice or service of a jury -in deciding.it: Town of South Ottawa v. Perkins, supra; Gardner v. Collector, supra; Jones v. United States, 137 U. S. 202, 216, 11 Sup. Ct. 80, 34 L. Ed. 691; Walnut v. Wade, 103 U. S. 689, 26 L. Ed. 526. 'The mecms whereby the judicial-mind is s5advised .aS-to be able, consistently with - the -'-irrefutable- presumption and-aá- ■ sumption that the courts know the-latv; to respond do .the inquiry involving- the ewist-enc&'-of'R statute,-etc, is, in - "a" sense, : -eCTcieitce,'-'"leading-'---to "'a"'‘finding/; of law, not of -fact.-Walnut v. Wade, 103, U. S. 689, 26 L. Ed. 526..“Any particular state maypby-its CÓBstitu- ' tion- and - laws, - prescribe 'what ‘ - shall- ;be - -cpn elusive- - Evidence-oí the existen'ce-or non-existence'oí a 'Statute;'but the, question of-such- existence-or non-existencevbeilig’a judicial-one in its'nature; the-mode-of as’eertáining'an'd using that evidence -must'rest' in'-the sound discretion-1 of .'the court- on which -the’ -duty ■ in' any -particular case ’ is imposed.'” • -, - ■. "........

Of the character; generally'-speaM-ngyof-'the-evidencié, properly advisory of- the judicial-- mind in;:respect'-tb matters of judicial cognizance, it is said in White v. Rankin, 90 Ala. 541, 8 South. 118: “If- the cognizance extends beyond actual knowledge, the judge may resort to any authoritative sources of information, and- inform himself of the fact in any way he may deem best, in his discretion,” etc. In Gardner v. Collector, supra, it Avas said “that, whenever a question arises in a court of laAV of the existence of a statute, or of the time Avhen a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory ansAver to such question, always seeking first for that Avhich in its nature is most appropriate, unless positive law has enacted a different rule.” The doctrine of this decision Avas favorably noted in Walker v. Griffith, 60 Ala. 367. To like effect is Town of South Ottawa v. Perkins, 7 Ency. of Ev. pp. 961-963, 1031, and notes thereon.

It is hardly necessary to add that rules of laAV pertaining to the introduction or admissibility of evidence in trials of ordinary issues of fact have no effect or bearing, when the judicial mind seeks or is seeking to avail of information to enable it to exercise judicial knoAvledge. — 7 Ency. of Ev. p. 879, and notes thereon.

Under our organic laAV, to the executive is apportioned an important part in the performance of the legislative- function. And it is entirely plain from the Constitution that the executive cannot delegate his part in the legislative process to anyone; for it is to the judgment of the person lawfully exercising the authority of the executive that the Constitution commits so much of the legislative function as it imposes upon the executive. The particulars and the extent of that legislative function, thus imposed upon the executive, is, so far as affects the present inquiry, to be found in section 125 of the Constitution. The section (125) is as follows:

“Every bill which shall have passed both houses of the Legislature, except as otherwise provided in this Constitution, shall be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon the journal and proceed to reconsider it. If the Governor’s message proposes no amendment which would remove his objections to the bill, the house in which the bill originated may proceed to reconsider it, and if a majority of the whole number elected to that house vote for the passage of the bill, it shall be sent to the other house, which shall in like manner consider, and if a majority of the whole number elected to that house vote for the passage of the bill, the same shall become a law, notwithstanding the Governor’s veto’ If the Governor’s message proposes amendment, which would remove his objections, the house to which it is sent may so amend the bill and send it with the Governor’s message to the other house, which may adopt, but cannot amend, said amendment; and both houses concurring in the amendment, the bill shall again be sent to the Governor and acted on by him as other bills. If the house to which the bill is returned refuses to make such amendment, it shall proceed to reconsider it; and if a majority of the whole number elected to that house shall vote for the passage of the bill, it shall be sent with the objections to the other house, by which it shall likewise be reconsidered, and if approved by a majority of the whole number elected to that house, it shall become a law. If the house to which the bill is returned makes the amendment, and the other house declines to pass the same, that house shall proceed to reconsider it, as though the' bill had originated therein, and such proceedings shall be taken thereon as above provided. In every such case the vote of both houses' shall be' determined by yeas and nays, and the names of the members voting for or against the bill shall be entered upon the journals of each house, respectively. If'any bill shall not be returned by the Governor Avithin six days, Sundays excepted, after it shall have been presented, the same shall become a lavv in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent the return, in Avhich case it shall not be a law; but Avhen'return is'prevented'by recess, such bill must be returned to the house in Avhich it- originated' Avithin tAVo days after the" reassembling, othenvise it shall'be a laAv, but bills presented to the Governor' Avithin five days before the final adjournment Of the Legislátüre may be approved by the Governor at any time'within- ten days after such adjournment, and if approved and deposited AAÚth thé'Secretary'of- State'within*that time'Shall become laAAú Evéry vote, or’d'er, oh resolution to- Avhich concurrence'of both houses may bé "netíessary, except on questions of'adjournment and-the brifiging On'of elections' by the 'two houses, and amending this Constitution, shall be pT'e'sented to the' Governor; "and, befor'e the. same shall’take1 effect, be-approved by- him; or, being-disapproved,"shall be repassed by both'houses according to” the rulés and limitations prescribed iii th'e case Of a bill.” •" • ■ '■■ ■ ; ■= 1 : ■ .

Omitting consideration of ^appropriation bills,” for Avhich special provision is made’ (sebtion 126), the executive- may, Avithin the time'prescribed, take: oné of several- courses) as he may be advised, with respect to a bill ■presented to him, viz.: (á) Permit it to beconie a' law by withholding therefrom his approving signature' until -the period prescribed has elapsed; '(b)' approAÚ the bill by signing .it within the period prescribed; (c). return the bill, without signing and within the period prescribed, to the house in which it originated, with his objections thereto and such amendments as would obviate his objections; (d) within the period prescribed return the bill to the house originating it, proposing no amendment which would remove his objections. The last two alternatives are, in effect, affirmative disapprovals — -a veto — though the subsequent legislative course is different in the two instances. In the former, it is the legislative right to consider and determine whether the amendment seasonably proposed by the executive shall be accepted by the legislative bodies; while in the latter the legislative right is to decide ivhether the bill shall pass, notwithstanding the seasonably expressed, executive objection, in which event, to make the bill a law, a majority of the elected membership of each house must vote to that end. The alternatives enumerated are executive prerogatives, the exercise of which no other department of the government can hinder or impair, much less defeat. And it is the duty and supreme province of the judicial department, in its proper sphere of interpreting-the Constitution and of deciding .what is the law, when properly invited to so determine, to pronounce in accord with the requirements of the organic law, and to protect and effectuate the powers and functions assured thereby to each department of the- government.

It is not open to question or to doubt that the reference to adjournment, in section 125, is to final adjournment — the end of (for) the session stipulated in the organic. law; and that the reference to recess is to suspensions of legislative deliberation (by the house to which the executive return of the bill may be made) for some measure of time beyond one day. It is equally as clear that the return of a bill, by the executive, must be to the body — the house — in its organized capacity, and not to an official, or other representative, of the body to which the executive may make, within his prerogative, his return of the bill.

Three periods, two controlled by contingencies, are allowed the executive for his action or nonaction, leading to the legislative consequence before indicated. lie must, if he would prevent the bill’s becoming a law by his nonaction, properly return it “within six days, Sundays excepted.” Since Sundays are expressly excepted, and since that day is universally respected by all the departments of the government, it is clear that the six-day limitation for the return of bills contemplates calendar days. But since, also, the executive return of a bill must be to the house originating it, when in session, to avail of the power given him to that end, the return on the last or sixth day must be effected, if that body is in session, on that day; hence to that extent the full calendar day, on the sixth day, must yield to the other mentioned requirement of the organic law. If such was not the rule, the limitation of six days for the executives action would be prolonged beyond that expressly provided for by the Constitution. The general publicity of legislative action, the proximity, though separate, of the executive offices to the places of legislative deliberation, and the necessarily constant communication, in the discharge of the respective public duties with which those departments are mutually concerned, between those departments refute the suggestion that either body of the lawmaking department could assemble on a day without such knowledge of the executive as would enable him to return a bill as he might be advised.

If the house in which the bill originated is in recess on the sixth day after the presentation of the bill to the executive, two days after reassembling are allowed him in which to return the hill, which opportunity for action, if not availed of, permits the bill to become a law. The two days thus stipulated must, in consequence, be days on which the body originating the bill is in session.

There is still another period provided for in section 125, and that relates to the limitation for the approved of bills by the executive after final eedjournment of the Legisledure. That period is ten days. These are calendar days of course; no return to the body originating the bill being contemplated or possible. But this period is conditioned on the presentation of the bill to the executive “within five days before final adjournment of the Legislature.’ Obviously the stated five-deiys prescription is a condition precedent to the executive right to approve emd deposit the bill, as a leeio, with the Secretary of State, during the ten eleeys after fined adjournment.

It is insisted by counsel for the respondents that the presentation prescribed in section 25 contemplates and requires that bills be “presented in fact to the Governor in person,” and this upon that which is unwarrantably (though in the abstract it is obviously sound) assumed to be the premise, viz., that in the process of legislation the executive’s undelegable judgment and discretion is the constitutional intent. That contention is wholly untenable upon reason and authority.

The transmission of a bill from the Legislature to the executive is particularly referred to five times in section 125. This act of transmission is required, in four instances, by the usé of the term “presented.” In prescribing Avhat shall be done Avith a bill to which the executive have proposed amendment, and in Avhich amendment, both houses concur, it is Avritten, “the bill shall again be sent to the Governor and acted on by him as other bills.” While the direction for transmission is there prescribed by the word “sent,” the immediately following provision .expressly commits the bill, so-amended upon the executive’s proposal, to the identical category, subjects it to the same provisions, in which are “other bills;” and thereby clearly negativing any notion that bills amended by the Legislature, on the seasonable proposal of the executive, occupy any character or status, with respect to executive action, different from that of “other bills.” It is evident from this use of “sent,” as stated, that the Constitution makers-never intended, through the mere employment of “presented,” to invest the process of transmission of a bill to the executive with the strictness a literal translation the term “present” in some instances imports. In short, the use of “sent,” in reference to the same character of act with respect to which “present” is employed is forceful to show that “present” was not regarded as. having any particular, strict significance; and that the obligation imposed on the Legislature is discharged when a bill that has been passed is “sent to the Governor,” a distinct conceit fr.om that expressed in the literal interpretation of the personal proffer or delivery of it to the executive, wherever he may be searched out and found. “Presented” has had place, in the connection with which we are now concerned, in each of our Constitutions since the. admission of the state into the Union. In-the natural order of things, every bill passed by the Legislature (or. General Assembly, as formerly called) during 90 years of the states life has invoked the construction, observance, and application, in legislation, of the provision of the organic law of which presentation of bills to the executive has been and is now,, in substance, a part.

Contemporaneous and practical construction or interpretation of constitutional provisions by the executive and legislative departments of the government will and should be considered by the courts in passing upon constitutional questions; and, though not accepted, except as to questions of a discretionary character, by the courts as conclusive, such practical, contemporaneous construction by departments particularly charged with the observance or execution of the provision under consideration, and acquiesced in for a great period of time, is of peculiar potency in the make-up of the judicial construction, provided the practice be not in contravention of the clear constitutional intent. — Cooley, pp. 102-107; 8 Cyc. pp. 736-739, and notes thereon. If, under a constitutional provision with the observance or execution of which the executive and legislative departments are concerned, a distinct practice has- been observed or prevailed, it cannot be a matter of doubt that the reordination of the provision in a subsequent organic law necessarily brings with it for the consideration, by way of advice, of the judicial mind, in the interpretation or construction of that provision, the well-understood practice Avhich has been pursued by those departments in the effort, in presumed good faith, to carry out the mandates, and to respect the restraints, of the Constitution, unless, of course as has been stated, the clear intent of the provision, Avhen read in the light of the Avliole instrument, forbade or forbids the practice so pursued. If, as has been ruled by the highest judicial authority in our country, general customs and . usage have the force and effect of Iuav, if not .opposed to positive laAV (United States v. Arredondo, 6 Pet. 691, 8 L. Ed. 547; Slidell v. Grandjean, 111 U. S. 412, 421, 4 Sup. Ct. 475, 28 L. Ed. 321), obviously the best Avisdom commends to the judicial mind, called to interpret constitutional provisions, of long existence and execution, of the class now under judgment, the ascertainment and consideration of the practice thereunder by those whose duties required their observance or excution of such provisions. Reason not only suggests this aid to constructions, but that and a proper regard for orderly processes in government demand the taking account thereof as a conservative means of discovering the true constitutional intent. .The principle has been pointedly recognized by this court in Taylor v. Hutchinson, 145 Ala. 202, 206, 40 South. 108; Ex parte Hardy, 68 Ala. 303, 318; Moog v. Randolph, 77 Ala. 597, 606; Farrior v. New Eng. Mortg. Co., 88 Ala. 275, 279, 7 South. 200.

In determining whether the presentation, under section 125, of bills that have passed the houses to the executive requires their proffer or delivery to him in person, or whether the constitutional prescription is met by the lodgment of bills that have passed the houses in the executive office, and with a member or members of the executive secretarial force, it is the duty of the court, called to construe and to interpret and to give effect to the constitutional requirement of such long existence and obligation, to advise itself of the practice pursued by those departments of the government in respect of the transmission of bills to the executive.

Besides numerous persons who have served in the legislative department, and who have been long familiar with the process of transmission of bills to the executive, our citizenship at this time numbers five former executives of the state, Adz., Hon. Rufus W. Cobb, Thomas G. Jones, Joseph F. Johnston, William D. Jelks, and Braxton B. Comer, who, Avith the present executive, Hon. Emmet ONeal, are peculiarly favored to speak, and that Avith every assurance of the utmost credibility, with reference to the practice of the presentation of bills for executive consideration, and so for periods, though disconnected prior to 1896, beginning-in 1878 and extending to the adjournment of the Legislature in 1911, covering approximately 20 years of the life of the state. One of these eminent citizens, Hon. Thomas G. Jones, was a member of the convention which wrote the present Constitution, and chairman of the committee reporting section 125, among others, of that instrument. From these sources, together with such pertinent and reliable documentary matter as may be available to satisfy the judicial mind, should this court seek for information as to the practice in respect of the presentation of bills to the executive consideration.

If, as the writer is advised, the long-recognized general practice in the premises has been to lodge bills that have passed the houses in the executive office with one or more of his official force, its receipt and the date thereof being noted by the receiving official, upon the enrolled bill, or entered in a book kept for that purpose, or both being done, and no practice to the contrary is discoverable, the plain duty of this court appears; and that is to accept the interpretation of the constitutional provision that has thus long prevailed and hence pronounce such a lodgment of a bill in the executive office, with his official force, a valid presentation, within the Constitution, squaring Avith the obviously sound and immediately authoritative ruling made in the comparatively recent decision of State ex rel. v. Porter, 145 Ala. 541, 547, 40 South. 144, 145, where it is said, Justice Anderson Avriting: “The laAV provides-that the petition must be presented to the Governor, meaning that it must be lodged Avith him or his official force in some formal manner, so as to become an official document.” (Italics supplied..) In that instance, the personal,, nondelegable, judgment of the executive on the matter of the petition was the law’s, prescription, just as,, in the performance of his constitutional function with respect to the making of laws, the executive personally must determine the matters within his prerogative.

If “presented,” in section 125, is interpreted to mean and require the proffer or delivery of the bills to the executive in person, patently no statute -can be constitutionally enacted that would or could permit the presentation of bills other than to the executive in person. So that the consequence of that conclusion upon the meaning of “presented,”- in section 125, cannot be qualified or temporarily avoided by recourse to or hope for legislative relief from the condition thus wrought; nor could the executive delegate to one or more of his official force the power to accept, in his stead, presentations of bills that have passed the houses.

The meaning and effect of the constitutional requirement for the presentation of bills to the executive, and when there has been such presentation as the organic law contemplates, was considered, in 1864 in the opinion of the justices on the .constitutional validity of the soldiers’ voting bill, 45 N. H. 607, 611, 612. One of the concrete questions propounded to the justices was this, “(3) When was said bill presented to the Governor?” Treating the inquiries submitted “as upon a case stated,” the opinion thus rehearses the facts assumed to be established: “That said bill originated in the House of Representatives, passed both branches of the Legislature,. was duly engrossed, signed by the presiding officers of both branches, and about noon on Wednesday, August 17, 1864, was carried by the assistant clerk of the Senate to the executive chamber, in the state house, in accordance with the customary mode of presenting bills to the Governor, and was laid upon the table of the Governor, who Avas then absent from the room, but who had been there during the' morning, and was expected to return that afternoon, but did not; that when said bill Avas thus laid upon the Governor’s table some members of the executive council Avere present, and also Mr. Barrett," the State Auditor, who Avas the son-in-law of the Governor, and Avho liad á table there in the executive chamber for the transaction of his business, near that of' the'Governor; that the assistant clerk of the Senate, Avhen he entered the executive chamber Avith said bill, announced that he had a bill for.the Governor; that the Governor saAV said bill on'Thursday, August 18th, Avhen he came into' the executive ’ chamber and found it Upon his table there; thát both houses adjourned from Saturday; the '20th, "to Tuesday, the 23d, of August, and Aver’e not in session oh Monday, August '22d;' thát,"oñ 'Wedneseday, August' 24 th, in' the aftérnobn, thfe Governor sent á message to the House of Representatives by Mr.' Sinclair, a member of said House, who gave'notice' to the speaker, in the House, when in session,* tliat'lie' had ’a unésSagé from the Governor to present; that the Speaker declined to receive it from linn;1 that said mésságe was not'received by any action Of the Speaker of 'of' the House, 'ahd' was nót read in their hearing,'but that, neáf the ¿lose'of th'e session that 'afternoon,'while the'yb'as and‘náys Aveie being taken Oh "á motion’ to adjourn., Avhich-aVus decided in the'affirmative; • the Secretary of State laicV'said message ‘ Oh ‘ the ' Speaker’s table, státiñg 'it "to be a message' from hiS excellency, "the Governor; tliát this message" ivás ' not opened' of read in the House, but was afterwards; on á subsequent day, referred to'a select committee; and thát in this message of the Governor he stated his objections to the bill in question, and returned said bill therewith to the House.”

The constitutional provision [part 2, art. 43] involved was as follows: “Every bill which shall have passed both houses of the General Court, 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 house in which it shall have originated. * * * If any bill shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature, by their adjournment, prevent its return, in which case it shall not be a law.”

It thus plainly appears that a vital factor to proper response to the inquiries submitted, specially that quoted above, was the determination whether the presentation required was a proffer or delivery of the bill to the Governor in person, the facts showing that the bill did not come to the Governor’s personal notice or attention uniil August 18, 186J¡; whereas, the bill was transmitted on August 17, 1S6-I, to the Governor’s office and “laid upon the table of the Governor, who was then absent from the room,” not returning thereto, as had been expected.

The justices ruled that the bill was presented on August 17, 1864; whereas, had a presentation to the executive in person been the mandate of the organic law, the bill there under consideration would have been held not presented until August 18, 1864, the day and date the executive saw the bill. It was there said: “But it would be absurd to hold that the officers of the Senate and House of Representatives are obliged, in order to perform their duty, to follow the Governor Avherever he may chance to go, AArhether in the state or out of it, upon his private business as well as public, and present bills to him in person, wherever he may happen to be.”

It is common .knowledge that this state provides offices for its executive in the state house. The laws provide for a messenger to the “chief executive office,” and for servants for the executive offices at the capitol.— Code, §§ 561, 563. A private secretary and a recording secretary are also provided for. — Code, § § 555, 556. Indeed, every convenience for the consideration and dispatch of the public business with which the executive may be concerned is afforded at and for the office of the executive in the state house. There is universal public acquaintance with the fact that quarters and the official force of the executive are in the state house. It is just as universally known and expected that the executive quarters is the place at which it is the duty and practice of the executive to attend and consider his pxiblic duties. These matters of general knowledge underlie and support the conclusion with respect to the sufficiency of presentation which is before quoted from State ex rel. v. Porter, 145 Ala. 547, 40 South. 144.

The wholesomeness and rationality of this view of the constitutional requirement for the presentation of bills to the executive invited and received the approval of the Supreme Court of Louisiana, in State ex rel. Michel, 52 La. Ann. 936, 27 South. 565, 48 L. R. A. 218, 78 Am. St. Rep. 364. The headnotes of the decision were prepared by Justice Blanchard, who wrote the opinion for the court. As is perfectly apparent from the opinion, it was not only proper but necessary that the constitutional provision of that state, with respect to presentation of bills to the executive,- should be construed. The first headnote is as follows: “(1) A bill Avhich has passed both houses of the General Assembly, and been signed by the presiding officers thereof, is presented to the Governor, Avithin the meaning of the Constitution, Avhen the clerk of the House of Representafives or secretary of the Senate carries the same to the executive office, and offers or tenders it to the Governor ■or his' secretary ” (Italics supplied.) •• •

The reasoning of the court in that case aptly demonstrates that, if'a presentation to the executive' in person was affirmed as the constitutional mandate, the executive would be vested with the power, if he remained within the commonwealth (Const., § 128), tó defeat, by absence from his office,' or otherwise the presentation of bills to him, and thereby render wholly vain legislative work: " ' - ■ ' ■ ■'

In'thé opinion of the Justices of' Massachusetts (99 Mass. 636-638),'the pertinent section-of the Constitution of that state was construed1-as requiting that bills that havé passed “must” to become law,'“De laid before thé Govenibr personally.^' ’The constitutional' provision there cóhstruéd'provided “th'a'fno 'bill'-shall become a law,“and have'force aS such, wftil it shall have been-laid before the Governor'f8t his rev’isdly *■ * and in ■order ■ to prevent unnecessary "delays; if' any-bill shall not be returned by the Governor,, within five days after if'shaH'haVe been■ presented'/ the samé' shall'have the force of Iaot:” !(Italics Sitpplied.)' ••That provision was, as appeals,'not thifcohhie'rpárf 'of•’ours"'; for the presen'tation'latteriy mentioned in'the'Organic law of that "state whs colored" 'in Piéáning and"effect 'by' the; preceding reqhir'em'ent that'bills; 10 become law; should'be laid ’before' 'the Góv'érhot. ¡"And'the''response' given'by the ■justices ’appears-'not 'to have'taken aCCOuht Of a longrecoghized'practice, bv- the departments'"concerned, of lodging bills with the executive''secretarial force in the executive office. — State v. South Norwalk 77 Conn. 257, 264, 58 Atl. 759.

' What the view 'of the justices would have been, had the practice indicated long prevailed under tliat provision of that Constitution, and then the reordination thereof effected in a later organic law, cannot be discovered in their opinion. In short, the question determined there had not the factors of constitutional terms and long-recognized practice and of reordination of those terms that must be considered by this court in this instance. On the concrete question propounded to them, viz., whether presentation to an “independent officer” (Secretary of State) was a compliance with the constitutional mandate there to be interpreted, there could be no real room for argument or doubt.

In State v. South Norwalk, supra, treating a constitutional provision very similar to our own, with respect to presentation of bills to the executive, the court said: “It cannot be deemed to have been presented to him until it has been in some way put into his custody, or into that of some one properly representing him, in such manner that he has reasonable opportunity to inspect and consider it.” The court then alludes to the statutory provision made, soon after the Constitution was adopted, for the proper presentation to the Governor at the executive offices during sessions of the General Assembly. This legislative action was interpretative only; for, if the organic law required a personal presentation to the Governor, the lawmakers were powerless to alter the requirement, so as to allow the presentation to a representative of the Governor. The statutory interpretation in that instance should not be more forceful or valuable in aid of correct construction than the long practice in this state, to which allusion had been made.

In the light of these considerations, weighed with that caution with which courts of last resort Avisely proceed when invoked to interpret a provision of the organic law to an effect materially different from that great departments of the government - have long attributed to, and executed it, the conclusion would seem to be.unescapable Unit the quoted, pertinent, pronouncement of State ex rel. v. Porter, supra, expresses the meaning and effect of “presented,” as that term appears in section 125 of the Constitution.

Was House Bill 323 presented to the executive; and, if so, when?

By the Act approved February 22, 1866 (Acts 1865-66, p. 88), provision was made for, among others, the compensation of these “officers in the executive departments of the state,” viz., “private secretary of the Governor” and “recording secretary of the Governor.” These positions appear to have had statutory recognition ever since, being provided for at this time by Code 1907, §§ 555, 556. These constitute the strictly secretarial force of the executive office. The selection of the person to serve in each of these places is committed to the executive, who; it is provided, may employ them, and nnry discontinue their services, in his discretion. — ¡Section 557. They have no fixed tenure. They serve at the pleasure of the executive engaging them. Some of the duties of the private secretary of the executive are prescribed by statutes. Those of the recording secretary are not particularly prescribed by statute. “A secretary is an official scribe; an amanuensis or Avriter; a person employed to Avrite orders, records and the like” — and the word “secretary” is, according to proper usage, synonymous Avitli “clerk.” — 7 Words and Phrases, p. 6381. From the statute-prescribed source of their selection, their unfixed tenure, and the Avords employed to designate them, these secretaries are obviously closely related to the person of the executive in his public service. They are his personal staff. The name “recording secretary” is indicative of the character of the service contemplated., of performance by the person employed for that position. When coupled with “secretary,” it is clear that the descriptive word “recording” intends a public servant, whose duty should he to enter or keep the record, of the executive office. — Montgomery Beer Bottling Works v. Gaston, 126 Ala. 448, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rp. 42. Performing public duties of the gravest importance, among which are those concerning the legislative function prescribed by section 125 of the Constitution, it is apparent that the executive must have and cause to be kept records of official acts. It is inconceivable that so important a public service as the executive constantly performs could be performed without the-keeping of record thereof. The creation, at the public expense, of the position of recording secretary is alone conclusive, not only of the necessity for a record to be kept of executive official acts, but that such a record is, in fact, kept by that secretary. Surely it. cannot be assumed that the expense of compensating a recording secretary to the executive would be charged'upon the public treasury if the service his official title suggests was not to be performed by him.' It may, hence, be asserted with every assurance of correctness that the creation of a recording secretaryship is as emphatic an expression of the executive necessity and duty of the keeping of a record of his official acts, etc., as would have been a legislative command that the executive cause to he kept a general record of the official proceedings, as was the statutory requirement in Ohio, alluded to in Wrede v. Richardson, 77 Ohio St. 182, 82 N. E. 1072, 1074, 122 Am. St. Rep. 498. And consulting the relevant custom prevailing in the executive office, as should be done, and as was done in Wrede v. Richardson, supra, it is known that, in the performance of his service in the executive office, the recording. secretary’s duty and practice, under the present executive administration, was to receive bills that had passed the houses, and that were brought to the executive office for the executive consideration, and to receipt the legislative clerk or messenger therefor, and that the recording secretary kept a book in which he entered the date of such' delivery of the enrolled bill to him, and that a stamp was also provided and customarily used wherewith to stamp, upon the enrolled bill itself, the fact and date of reception of the enrolled bill in the executive office. Under these circumstances, it is evident that writings made by the recording secretary, in his official capacity, are public records; and so even under ■strict rules of evidence, serviceable upon the trial of ordinary issues of fact, that are not to be thoughtfully •doubted.

It has been suggested that a. writing, to be a record ■and admissible in evidence, must be kept or made under statutory authority or command. Recourse to the highest authority on the subject demonstrates that such is not the law. “Although a book kept by a public officer is not required to be kept by any statute, yet, if it is necessary or proper and convenient to the adequate discharge of his duties, it is an official book, and admissible ■as such to prove the facts therein stated. So entries or indorsements which are necessary to a proper discharge of official duty are competent, though not expressly authorized or required by law.” — 10 Ency. of Ev. pp. 716, 717, and notes thereon; Sandy White v. U. S., 164 U. S. 100, 17 Sup. Ct. 38, 41 L. Ed. 365; 1 Greenleaf, §§ 483-485; Evanston v. Gunn, 99 U. S. 660, 665, 25 L. Ed. 306; Jones on Ev. §§ 508, 509.

In Sandy White’s Appeal, supra, one question was whether book entries made by a jailer, showing the names and dates of prisoners received and discharged, were admissible in evidence on tbe trial of tbe defendant, who was charged with presenting’ false, fictitious,, and fraudulent claims against the United States. The court said: “We think no error ivas committed by the trial court in this ruling [i. e., in admitting in evidence the jailer’s entries]. It was not necessary that a statute of Alabama should provide for the keeping of such a book. A jailer of a county jail is a public officer, and the book kept by him was one kept by him in his capacity as such officer, and because he was required so to do. Whether such duty was enjoined upon him by statute or by his superior officer in the performance of his official duty is not material. So long as he was discharging his public and official duty in keeping the book, it ivas sufficient. The nature of the office would seem to require it.”

The rule is thus set down in Evanston v. Gunn, supra: “* * * Official registers or records kept by persons in public office, in ivkick they are required, either by statute or by the nature of their office, to write down particular transactions occurring in the. course of their public duties or under their personal observations, are admissible in evidence. To entitle them to admission, it is not necessary that a statute requires them to-be kept. It is sufficient that they are kept in the discharge of a public duty. — 1 Green. Evid. § 496. Nor need they be kept by a public officer himself, if the entries are made under his direction by a person authorised by him.” (Italics supplied.)

When it is remembered that the executive duties and prerogatives established by- section 125 are of such grave importance in the making of laws that they are restricted, for seasonable, effectual exercise, to a stipulated period, that they are almost constantly invoked for application during a legislative session, that them exercise naturally involves, in the.executive view, fidelity to the public policies to which he has, before the electorate, committed and obliged his administration, that the multitude of executive duties, along with those imposed by section 125, forbid even the effort to retain in memory the executive .acts, much less the inception of the limitation periods stipulated in section 125, it may be said to be unimaginable that the executive functions, particularly with respect to the duties imposed by section 125, could be performed, with any approach to orderliness, without the keeping of a record thereof. The nature of the office of chief executive, and of that of its subordinate, intimately related functionary, the recording secretary, requires the keeping of records, the entry and indorsement, of official acts, and of processes leading thereto.

The like considerations and conclusions apply to a book kept by the clerk or messenger of the respective Houses, wherein the recording secretary receipted for bills transmitted to the executive office, in observance of the requirements, in that regard, of section 125 of the Constitution. Such a book falls within the provision of Code, § 909, which reads: “At the close of each session, the secretary of the Senate, and the clerk of the House of Representatives, and Secretary of State, must select all papers belonging to the Legislature, except such as relate to unfinished business, and deposit them in the office of the Secretary of State.” Such papers are, of necessity, public documents; and their required deposit with the Secretary of State refutes the notion that such documents were or are the mere private memoranda of those who serve the houses in clerical capacities. — Code, §§ 909, 912. This is particularly time of the receipt book, kept by legislative officers, of bills transmitted to the executive office — an act (transmission) required of the Legislature in the performance of its functions under section 125 of the organic law.

The following records, kept, or made by officials in their official capacities, show that the enrolled House Bill 323 was transmitted to the executive office on March 22, 1911, and delivered to the recording secretary of the Governor; (a) The receipt thereof and therefor, by the recording secretary, in the receipt book'kept by the enrolling clerk of the House of Representatives of enrolled bills so transmitted, which receipt book is now deposited in the office of the Secretary of State, (b) The book kept by the recording secretary of the Governor, in which he entered the date of the receipt, by him, of the enrolled bill so transmitted from the Legislature to the executive office, (c) The following words, indorsed by the recording secretary on enrolled House Bill 323: “No. 162. Received March 22, 1911, Governor’s office.” The number “162” being the Governor’s number. From the “record book” kept by the recording secretary (Mr. Nunnellee), he testified that the enrolled bill left the executive office March 31, 1911. The executive’s message, before mentioned, with respect to House Bill 323, bears the like date; and the House Journal, as previously stated, Shows that to have been the date of the return of the bill by the executive.

From these public records, made by public agents in the orderly process of-promoting and invoking, according to constitutional mandate (section 125), the executive’s legislative function in the enactment of laws, it appears with absolute certainty that Plouse Bill 323 was presented to the executive on March 22, 1911.

The presentation on March 22, 1911, being established and effected, the constitutional limitation, within which the executive must have acted in order to avert the bill’s becoming a law, began to run against executive action. Obviously the Legislature was powerless to suspend the running of the limitation. Aside from the recall of the bill from the executive custody and his return of the bill in accordance with that request, the only action of the Legislature by which the limitation (for executive action) could be affected was by recessing.

The sole effect of a recess, as plainly provided by section 125, is to add two legislative days, where return within the six-day period is prevented by recess of the house originating the bill. There is no semblance of warrant in the organic law for the notion that the Legislature may suspend the running of the limitation; it having once begun. The result necessarily is that by the very letter, expressive of the clear spirit and purpose, of the Constitution, the omission of the executive to act on the bill within the prescribed period after presentation makes it a law — constitutes the bill an enactment. If the Legislature might pronounce otherwise, the legislative will, and not the Constitution, would be supreme. If the Legislature may treat a bill presented to and retained beyond the period by the ex-cutive as still in fieri, still subject to the mold of legislation, when in record-established fact it has passed, under clear constitutional pronouncement, that stage,, it cannot be said that the Constitution is the paramount law of this state. Given a presentation of a bill to the executive, which presentation has not been withdrawn by perfected recall of the bill, the constitutional limitation begins; and, if not interrupted in one of the modes thereby (section 125) prescribed, the bill becomes a law. To hold otherwise would subvert the organic law in respect of its plain provisions.

The House originating Bill 323 was, as shown by its Journal, in session on March 29, 1911. March 25, 1911, was Sunday. Hence the last (sixth) day on which the executive might return House Bill 323, and thereby prevent its becoming a law as signed by the presiding officers of the houses on March 22, 1911, was March 29, 1911. Not having returned the bill till, as is shown with all certainty, March 31, 1911, the bill, as presented to him on March 22, 1911, became a law, and so by express mandate of the organic law.- — Section 125.

The idea that the Legislature on March 31, 1911, approximately two days after House Bill 323 became a law, might or did, by necessary or reasonable implication from its unqualified action on the amendment proposed by the executive on March 31, 1911, investigate and determine conclusively that the executive return of the bill was seasonable, is, as before indicated, wholly untenable. The bill having been presented so as to require its return by the executive not later than March 29, 1911, if the Legislature had solemnly pronounced, on March 31, 1911, that the executive return was within the prescribed time, it would have been utterly vain, unless it could be affirmed that, notwithstanding constitutional limitations and mandates, the Legislature may conclusively declare that an act is a bill, and not a law, Avhich in truth and fact had, pursuant to constitutional provision, become a law. The Constitution is the supreme laAV to all departments of our government. And it is finally accepted here “that, under our Constitution, a bill becomes a law only after it has passed through all the forms prescribed, and made necessary to give validity to legislative enactments.”— Stein v. Leeper, 78 Ala. 517, 521; Jones v. Hutchinson, 43 Ala. 721; Moog v. Randolph, 77 Ala. 597. Under our Constitution, that Avhich has become a law cannot be changed.or amended by legislative action taken otherwise than in the manner and according to the constitutional prescriptions for the enactment of laws, which is by bill formulated, in title and substance, as ilie organic law prescribes, and conformable to the rules of committee consideration and' passage which that instrument particularly requires.

It has been suggested that to accept the specified record evidence of presentation of this bill on March 22, 1911, institutes a conflict with or contradiction by the journals of the houses. In the journals of the houses, there is no reference whatever to the matter of seasonable return of this bill by the executive. It is by attributing to more action, by the Legislature, upon the amendment proposed by the executive that the journals are said to express anything anent the seasonableness of the executive return of the bill. The journal is an official narrative of the proceedings of the respective houses. — State ex rel. v. Greene, 154 Ala. 249, 46 South. 268.

It is common knowledge that the executive of this state does not sit with the Legislature, and that his offices are removed from the legislative chambers. It appears, also, that the Constitution makers were particularly cognizant of these facts, since they provided for the transmission of bills that had passed the houses to the executive by such verbiage as necessarily imports the idea of his removal from the presence of the houses. The presentation of bills to the executive being, therefore, an act transpiring outside the presence of the houses, the fact thereof could have no place on the journals of the houses; and in consequence even an assertion (not here present) of the fact of presentation, with its date, upon the journals of the houses would be matter foreign to the journals; for the houses, unless presentation was made in one or botli of them, cannot record a fact occurring elsewhere. What verity or effect would or should be given the journal record of a report, in regular course of legislative work, by a messenger or officer cf one or b fill of ilie houses, reciting that he had presented a certain bill to the executive in accordance with section 125, when that report is in conflict with executive records, would raise questions not pertinent here; for no such report appears to have been made or spread upon the journals of either house. In fact, the receipt book kept by the enrolling clerk of the House of Representatives conforms, in respect of the date of pre-. sentation of House. Bill 323, to the records kept in the executive office, and to the fact of presentation indorsed on the enrolled House Bill 323.

It has been also suggested, as upon the authority of Robertson v. State, 130 Ala. 161, 30 South. 494, Ex parte Howard-Harrison Iron Company, 119 Ala. 484, 24 South. 516, 72 Am. St. Rep. 928, and Montgomery B. B. Works v. Gaston, 126 Ala. 425, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rep. 12, that the act as promulgated, coming as it does from the custody of the proper custodian of enactments of this state, its journal history fair, and bearing the approving signature of the executive, must be finally accepted by the courts as duly enacted in all particulars; fraud or forgery not being shown in respect to it. None of these decisions should or do control the conclusion on the question here involved. In Ex parte Howard-Harrison Iron Company, the question was whether the bill approved by the executive was the bill, not materially variant from the bill, passed by the houses. It was ruled that the presumption favored their identity; and that that presumption could only be overcome by the journals kept by the houses. Obviously that ruling was sound; for the highest and only evidence of what bill the houses passed were the journals thereof.

In Montgomery B. B. Works v. Gaston, the contest invoked the decision of the question whether the houses passed or adopted the same bill. It was necessary, in determining this question, to ascertain what was the journal; whether it was the loose memoranda kept by the clerks, or. the compiled and bonnd volume. It was held that the bound volume was the journal; and, consulting it as the conclusive evidence of legislative action by the houses, the view prevailed that therefrom it ap.peared that the lower house had not adopted the Seriate amendments, and thereby, as of course, leading to the constitutional invalidity of the enactment.

In Robertson v. State, these objections, as leading to constitutional invalidity, were asserted: (1) That the act was “wholly changed in its title and purpose during its passage through the” lower house; (2) that it was not read on three different days in either of the houses; (3) that it was not signed by the Speaker, its signature being by the Speaker pro tempore, Mr. Tunstall; the Speaker, Mr. Pettus, being ill at the time. The.court held the act valid, and so in respect to the objections other than the last (third), upon the authority of the mentioned two decisions in 119 Ala. 484, 24 South. 516, 72 Am. St. Rep. 928, and 126 Ala. 425, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rep. 42.

In these cases, presenting the questions stated, it cannot be that this court ruled or intended to rule that matters necessarily and invariably, according to common and judicial knowledge, occurring in the executive office, removed from the legislative chambers, could or should properly appear upon the journals. By no sort of assumption could that be affirmed of these decisions. They did not, even remotely, invite the construction of section 125 in the particular with which this appeal is concerned. Whether the acts there considered became law, under the limitations and prescriptions of section 125 for executive action, was not involved or taken into account in any way. These cases, however broad their language, are without bearing here. This doctrine is, however, too deeply imbedded in our law to be now doubted, much less disturbed: That no bill can become a laio until it has been enacted according to the forms prescribed by the Constitution. Whether, in a given case, those forms have been observed is essentially a judicial question. — Author, supra.

When the constitutional prescriptions are such as the houses are required to observe, and their observance is shown by the record (the journals) thereof, the courts accept finally the assertions of that record. This according to the wholesome notion of verity with which the courts are accustomed to view the’ memorials of tribunals jurisdictioned to make them.

The right of the Legislature to act upon an amendment proposed by the executive is particularly prescribed in section 125. The condition to that right is the executive return of the bill, with his proposed amendment, Avithin the period prescribed. The consequence of delay in this particular beyond the period is that the bill adopted by the houses, and signed by the presiding officers thereof, becomes a law.

The right of the executive to return a bill, with proposed amendment, depends upon his action Avithin a prescribed period. The right of the executive to veto a bill, thereby preventing its becoming a laAV, unless subsequently reconsidered and passed by the houses as the organic laAV requires, likewise depends upon his action within the prescribed period. Each right is limited, restricted, to a definite period. Beyond that period, neither the executive nor the Legislature has any power or authority to defer, to defeat, or to alter the legislative will as expressed in the bill1 presented to him, except by a new enactment. These are constitutional restraints —mandates—just as supreme and binding as any others, to be found in that instrument.

Does mere presumption (to say nothing, at this time, of the refutatory executive records to which particular reference has been made) - of conformation to constitutional requirements in the enactment of laws conclude judicial inquiry, when pointedly invoked, whether the act promulgated became a la w in consequence of observance of constitutional commands?

When, as here, the executive action or nonaction, within a constitutionally prescribed period, is the determining factor, it is obviously no answer to say that this court has given a concluding effect to the journals of the houses-in respect to matters properly appearing upon them, cr that it has indulged, to finality, the presumption that, though the journals are silent, the rightful processes of legislation in the honses were observed.

In Sadler v. Langham, 34 Ala. 311, 322, it was ruled that the character of the presumption, of conformation to constitutional requirements by the Legislature, in the enactment of laws, was not conclusive — not conelu-' sive upon the judicial department, to which, in the division of governmental powers (the express restriction of each department to its sphere) such inquiries are committed by the organic law. — Const. §§ 42, 43.

If the stated, conclusive presumption should be accepted, it may be inquired whether those provisions of the organic law (section 125), whereby executive action is required within prescribed periods, as affecting the enactment of laws, are not bereft of any means or tribunal for their enforcement, or of any force in the constitutional methods for the enactment of laws; whether the stated presumption has not stricken from the organic law these limitations and prescriptions, even the pronouncement that a bill, not seasonably returned; “shall become a law in like' manner as if he had signed it?”

If a promulgated bill, apparently valid, is assailed for fraud or forgery in respect of executive action thereupon, would the presumption stated shield it from judicial inquiry in the premises? If it would not, it may be inquired whether the nonobservance of clear constitutional mandates is not as fatal to valid legislation as the grave wrongs of the class to which fraud and forgery belong? If a litigant may, in promotion or defense of a right, say, “the executive did not sign, approve, that bill, though his name appears thereto,” ought another litigant, in promotion or defense of his right, be permitted to assert and show, by public records kept, in regular course, in the executive office, that the executive delayed his return or veto of the bill until the Constitution pronounced it a law “in like manner as if he had signed it?”

In this instance, relator contends that the presented (on March 22, 1911) bill became and is the law; while, on the other hand, the respondents assert that the bill, with the amendment proposed by the executive, became and is the law. The former’s insistence is justified by the public records of the executive office and that kept by the enrolling clerk of the House of Representatives; the bill, signed by the presiding officers of the houses on March 22, 1911, not having been returned by the executive within the period prescribed by the Constitution, became a law under the express mandate of the Constitution. Such being the case, the amendment proposed by the executive on March 31, 1911, and adopted by the liouses, never bad. tbe force of law; tbe orderly processes for tbe amendment or change of that wbicb was already a law not having been conformed to in tbe adoption of the amendment so proposed by tbe executive.

Tbe opinion is therefore entertained that tbe respondents were not and are not lawfully constituted commissioners of tbe city of Montgomery; that their appointments were and are without tbe sanction or authority of law, and hence were void.

Case Details

Case Name: State ex rel. Crenshaw v. Joseph

Court Name: Supreme Court of Alabama

Date Published: Dec 21, 1911

Citation: 175 Ala. 579

Court Abbreviation: Ala.