State ex rel. Hynds v. Cahill, 75 P. 433

75 P. 433 | Wyo. | 1904

Potter, Justice.

February 21, 1902, the petition of the relator was filed in the District Court for the County of Laramie, praying for a writ of mandamus to require the respondents, the County Clerk, Treasurer and Sheriff, respectively, of said County of Laramie to prepare, issue and deliver to the relator two licenses, authorizing him to carry on in a certain place designated in the City of Cheyenne, in said county, the games of faro and roulette for the period of three months from the 21st day of February, 1902. It was alleged in detail that all the things required to be performed by the relator to entitle him to such licenses under the provisions of Sections 2151, 2152, 2179, 2181, 2182 "and 2185 of the Revised Statutes, had been done and performed; and that said provisions were in full force and effect. It is further alleged that- the respondents had refused to perform their respective duties in the premises, and gave as the reason for their refusal that the laws theretofore authorizing the licensing of such games had been repealed by the provisions of Chapter 65 of the Laws of 1901, being an act entitled, “An act to amend and reenact Sections 2178, 2180 and 2183 of the Revised Statutes of 1899, and to repeal Sections 2179, 2181, 2182, 2185, and 2186 of the Revised Statutes of 1899', relating to gambling.”

The original respondents were Dallas R. Cowhick, as County Clerk; John Schuneman, as Treasurer, and Edwin J. Smalley, as Sheriff of the County of Laramie. Joseph A. Cahill, the present County Clerk, has been substituted in place of Dallas R. Cowhick, deceased; and John E. Vreelánd, present County Treasurer, has been substituted for John Schuneman.

The petition sets forth that Chapter 65 of the laws of 1901 was and is wholly void, and was never enacted by the Legislature for the alleged reasons that before the same was considered, and before its passage, the bill was not referred to a committee as required by the provisions of Section 23 of Article 3 of the constitution; and that neither the act, nor the bill therefor, was ever signed by the Speaker of the House of Representatives in the presence of the House, as required by the provisions of Section 28 of said article; and that the fact of such signing was not entered upon the journal of the House as required by the provisions of said Section 28. Separate answers were filed by the respondents, setting forth the proceedings had and taken in the House of Representatives in respect to the matters'complained of, and admitting that if such proceedings did not amount to a compliance with said constitutional provisions then there had been a failure to comply with' them.

The cause was submitted to the District Court upon an agreed statement of facts, the material parts of which are as follows:

“That the official duties of the said respondents referred to-in paragraphs three; four and five of relator’s petition are the official duties prescribed in Sections 2151, 2152, 2179, 2181, 2182 and 2185 of the Revised Statutes of Wyoming, 1899.

“That on the 21st day of February, A. D. 1902, the relator requested said respondents to prepare, countersign and issue to him two licenses, one for a game of faro and one for a game of roulette, authorizing the said relator to carry on said games in a room located in the City of Cheyenne ; and that respondents refused to comply with' the said request of relator.

“That Chapter 65 of the Laws of Wyoming, A. D. 1901, was introduced in the Senate of the Sixth Legislature of Wyoming under the caption of Senate File No. 42, and is referred to in the journals of the Senate and House of Representatives of the Sixth Legislature of Wyoming as Senate File No. 42 and as Senate Enrolled Act No. 26.

“That the enrolled copy of said Senate Enrolled Act No. 26, duly signed by the President of the Senate and the Speaker of the House of Representatives and approved by the Governor, is now on file in the office of the Secretary of State, and that the printed copy of said act as it appears in the printed and bound volume of the Session Laws of the Sixth State Legislature of Wyoming, under the title of Chapter 65, is a true and correct copy of the original enrolled act on file with the Secretary of State, excepting that said printed copy does not show the signatures and endorsements appearing on said enrolled act.

“That the record of legislative procedure pertaining to said Senate File No. 42 appears in the duly approved original Senate and House Journals of the Sixth State Legislature of Wyoming, now deposited in the office of the Secretary of State, and in the printed copy of said journals printed and issued under the direction of the Secretary of State; and said journals are hereby made a part of this agreed statement of facts.”

Upon the submission of the cause, on May 27th, 1902, the District Court, finding that important and difficult questions arose in the case, ordered that the cause be reserved and sent to this court for its decision, upon the following questions:

First — Does Chapter 65 of the Laws of the Sixth State Legislature of Wyoming contravene the provisions of Article 3, Section 24, of the constitution?

Second — Are the provisions of Article 3, Section 23, of the constitution directory or mandatory?

Third — Was the reference of Senate File No. 42, being Chapter 65 of the Laws of the Sixth State Legislature, to the Committees of the Whole of the Senate and House of Representatives, and to the Senate and Joint Committee on Printing, and to the Senate Committee on Engrossment and Enrollment, as said references appear of record in the journals of the Senate and House of Representatives of the Sixth State Legislature a sufficient compliance with the requirements of Article 3, Section 23, of the constitution?

Fourth — Are the provisions of Article 3, Section 28, of the constitution, directory or mandatory?

Fifth — If the provisions of Article 3, Section 28, of the constitution, are mandatory, do the journals of the Senate and House of Representatives of the Sixth State Legislature show that Senate File No. 42 was enacted in compliance with such mandatory requirements?

Sixth — Is Chapter 65 of the Laws of Wyoming for the year 1901, being Senate File No. 42 and Senate Enrolled Act No. 26, a valid and constitutionally enacted statute of Wyoming?

Seventh — Are Sections 2151, 2152, 2179, 2181, 2182 and 2185 of the Revised Statutes of Wyoming, 1899, now in full force and effect?

The said questions were reserved and the cause docketed in this court prior to the act of 1903 limiting the right of the District Court to reserve questions to this court to such as are constitutional in character. Hence the case would be properly here, did it not involve, constitutional questions. But the questions involved are constitutional and come strictly within the act authorizing the reservation of questions as now in force.

On the argument in this court no contention was made that Chapter 65 of the Laws of 1901 was invalid because of any failure to comply with the provisions of Section 23 of Article 3 of the constitution, or of any violation of Section 24 of the same article; but all objections in respect to the requirements of those sections were expressly abandoned. The objection to the validity of the „act was distinctly confined to the alleged failure of the journal of the House of Representatives to show affirmatively a compliance with Section 28 of said article. Hence it will be unnecessary for us to consider either the first, second or third questions stated in- the order of the District Court.

The right of the relator to the relief demanded by his petition depends altogether upon the alleged invalidity, of the act known as Chapter 65 of the laws of 1901. By that act it was declared that “every person who shall deal, play, carry on, open, or cause to be opened, or who shall conduct, either as owner or employee, whether for hire or not, any slot machine, game of faro, monte, roulette, * * * or any other game played with cards, dice or other device of whatever nature, for money, checks, credits or other representatives of value, shall be guilty of a' misdemeanor, and on conviction thereof shall be punished by -a fine of not less than three hundred nor more than one thousand dollars, or by imprisonment of not less than three months nor more than one year, or by both.” And the sections of the statute theretofore in force providing for the licensing of certain games, including the games of faro and roulette, were declared to be repealed.

It is contended on behalf of the relator that the provisions of Section 28 o'f Article 3 of the constitution were not complied with in respect to said act, and that in consequence thereof the said act is void, and the sections continue in force, which it purported to repeal.

The constitutional provision referred to reads as follows:

“The presiding officer of each house shall, in the presence of the house over' which he presides, sign all bills and joint resolutions ¡passed by the Legislature immediately after their titles have been publicly read, and the fact of signing shall be at once entered upon the journal:”

It is conceded, and such is unquestionably the fact, that the act in question bears the signature of the presiding officers of the Senate and House of Representatives, and of the Governor approving the same. And it is deposited in the office of the Secretary of State, and has been published among the other laws of that session, as one of the duly passed and approved laws of the State. The presumption, therefore, woúld be that it was regularly passed; and the enrolled act in the office of said Secretary authenticated as aforesaid is to be taken as prima facie evidence that the act was duly and regularly passed pursuant to all the constitutional provisions affecting the enactment of laws, and duly and properly authenticated and approved.

But the act is challengéd on the ground that the journal of the House of Representatives fails to show the fact of signing. It is contended that as the constitution expressly requires the fact of signing to be entered on the journal, the latter record, when the validity of the authentication by the presiding officer is questioned, constitutes the only evidence as to compliance with the provision of the section of the constitution under consideration. It is argued that if the journal is silent respecting the fact of signing, the presumption is justified that the requirement was not carried out in the prescribed manner; and that the constitution having designated how the evidence of signing shall be perpetuated, viz: by an entry on the journal, it is not within the' province of the courts to look elsewhere for evidence of compliance, nor to indulge a presumption of compliance from the presence upon the enrolled act of the signature of the proper officer. It is conceded, however, that, as the only journal entry required is of the fact of signing, when such an entry appears, it will be presumed therefrom that the signing occurred in the presence of the body over which the officer presided, and after the title of the act had been publicly read. Indeed, since the journal is a record of only those acts and proceedings which occur in the presence of the legislative body and while it is in session, it is a reasonable and logical conclusion that a journal entry showing the signing of a bill by the presiding officer shows thereby that the signing occurred in the presence of the House or Senate, as the case may be. But the concession of counsel, as we understand it, is based not alone upon that presumption, but also upon the proposition that the constitutional requirement of a journal entry in this respect extends only to the fact of signing; and that an entry showing more than that is not required.

In support of the contention of relator, it is maintained, first, that it is competent for the courts to consult the legislative journals in reference to those matters which are expressly required by the constitution to be therein recorded, concerning the procedure in the enactment of laws, and that such journals may be used to impeach the enrolled act; second, that the journals imply verity, and cannot be impeached by parol evidence, or by an entry of a later date, or by the minutes or memoranda kept by the clerk; third, that the provisions of Section 28 aforesaid are mandatory; and, fourth, that the fact of signing the act in question by the Speaker of the House of Representatives was not entered upon the journal of the House.

It was held in Brown v. Nash, 1 Wyo., 85, by the Supreme Court of the Territory, that the courts have power to examine the journals of the Legislature to ascertain whether or not there has been an observance of the requisite procedure in the passage of laws. In State ex rel. v. Swan, 7 Wyo., 166, this court held that it is competent for the courts to consult legislative journals in reference to a matter expressly required by the constitution to be recorded therein, concerning the constitutional procedure for the passage of a legislative enactment; and that where it affirmatively appears upon such an examination, in respect to such requirements, that a bill did not, in fact, pass the Legislature, or did not receive the constitutional majority, the journals may be used to impeach the enrolled act. In that case the journals were resorted to, and it was held that it affirmatively appeared therefrom that the act then under consideration had not in fact been passed by the Legislature.

It was said in the Swan case that, “When the keeping of legislative journals is enjoined by the constitution, and that instrument also attaches certain conditions to the enactment of a valid law, and the facts showing a compliance therewith are required to be entered upon the journals, the decided weight of authority in this country favors the resort to such journals to determine whether the law has been enacted in a constitutional manner.” And a large number of cases were cited. We did not then hold, nor do we now hold, that the journals are competent evidence to impeach the enrolled act in respect to every particular required even by the constitution as a part of the procedure in the passage of bills, nor is it necessary to consider that broad question. But we are satisfied both upon reason and authority that they are competent evidence concerning any procedure which the constitution expressly declares shall be made a matter 'of journal record; and as decided in the Swan case an affirmative showing by the journals in reference to such procedure that the bill was not passed in a constitutional manner is competent to overthrow the ordinary presumption arising from the enrolled act.

It is difficult to perceive "any sound reason for a provision in the constitution commanding that the journals shall record the action of the Legislature upon certain essential matters of procedure in the passage of laws unless they are to be regarded as evidence for some purpose of such action. Otherwise, though stated in the most positive or prohibitive language, the .constitutional command that certain procedure shall be followed would operate in practice as a mere check upon the conscience of the Legislature, to be obeyed or not at pleasure, without interference by the courts.

The arguments of counsel have been largely directed to the questions whether the constitutional provision aforesaid respecting the signing of every bill by the presiding- officer, and the journal record thereof, is mandatory or directory; and whether the entry as made constitutes a sufficient compliance with such provision.

The authorities are not harmonious upon the' question whether this particular provision and provisions of the same general character are to be regarded as mandatory. Judge Cooley, in his work on Constitutional Limitations, quite freely expresses his view that constitutional provisions concerning the procedure in the enactment of laws are imperative and mandatory. Referring generally to the question, that eminent author and jurist says: “But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in essential matters, it is lowering the dignity of such an instrument, and usurping the proper province of ordinary legislation. * * * If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end.” (Const. Lim. (3d Ed.), 78, 79.) And further on he states his full concurrence with the statement of Mr. Justice Emmot in People v. Lawrence, 36 Barb., 186, that “it will be found upon full consideration to be difficult to treat any constitutional provision as merely directory and not imperative.” (Id., 82.) And with reference to the frequent provision for the entering of the yeas and nays upon the journal on the final passage of every bill, he says: “Such a provision is designed to serve an important purpose in compelling each member present to assume, as well as to feel, his due share of responsibility in legislation; ana also in furnishing definite and conclusive evidence whether-the bill has been passed by the requisite majority or not.” (Id., 140.) And again, as though intended to conclude the whole matter: “The fact is this: that, whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the Legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so, we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the Legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it.” (Id., 150.)

It is said in Sutherland on Statutory Construction that “in a large majority of the states in which the question has arisen, the courts have held constitutional provisions in reference to parliamentary procedure in legislation to be mandatory.” (Suth. Stát. Const., Sec. 41.) In the able and exhaustive brief of counsel for the relator a large number of cases are cited and reviewed, showing that in twenty-seven states constitutional requirements have been held to be mandatory. In some of the cases the provision considered contained negative or prohibitive words, and in others the language of the provision was merely in the form of a positive mandate. We deem it unnecessary to review the authorities. Although there is to be found respectable authority to the contrary in respect especially to those provisions which do not contain negative or prohibitory words, it seems to be held generally by the preponderating weight of authority that constitutional requirements are mandatory, rather than merely directory. Counsel appearing amicus curiae, in support of the validity of the statute in question, has industriously collected the cases wherein certain provisions relating to procedure in enacting and authenticating laws have been held to be directory merely. Some of them will be presently referred to. It is to be observed, also, that in a few states where the theory of mandatory construction is adopted the courts refuse to go behind the enrolled act to discover whether constitutional requirements have been observed in its passage. This is notably so in Montana as to ordinary legislation, though a different rule seems to have been - adopted in respect to proposed constitutional amendments.

In Colorado the requirement that the presiding officer shall sign every bill in the presence of the house, and that the fact of signing shall be entered on the journal, was held to be directory. (In re Roberts, 5 Colo., 525.) And the same conclusion was reached in Missouri. (State ex rel. v. Mead, 71 Mo., 266.) The reason upon which those decisions were based was that the provision did not contain negative or prohibitive words, such as “No bill shall become a law unless,” etc., which were found in connection with other provisions.

In Montana the silence of the journal as to signing, under a similar constitutional provision, was held insufficient to invalidate an act upon the ground that the journal was not competent to impeach the enrolled act.

In Nebraska a statute was upheld, although not signed by the President of the Senate. A journal entry of the fact of signing was not required. But the court held-that the required signing was a mere authentication for the information of the executive. (Taylor v. Wilson, 9 Neb., 88; see also Cottrell v. State, 17 Neb., 125.) In later Nebraska cases constitutional requirements seem to have been regarded generally as mandatory. (Webster v. Hastings, 59 Neb., 563; State ex rel. v. B. & M. R. Co., 60 Neb., 741.) And in that state the rule is that the journals by an affirmative showing that an act was not constitutionally enacted are competent to impeach the enrolled act. (State ex rel. v. Frank, 61 Neb., 679.) In State v. B. & M. R. Co., supra, it was said: “If the entries found in the journals expressly and unequivocally contradict the evidence furnished by the enrolled bill, the former will' prevail.” And in Colorado a provision other than the one considered in the case of In re Roberts, supra, relating to the procedure required in the enactment of laws, was held to be mandatory. (In re House Bill 250, 57 Pac., 49.)

In Kansas the failure of the Lieutenant Governor, as presiding officer of the Senate, to sign an act as required by the constitution was held not to render the act invalid. It was argued in the opinion that if such a failure operated to invalidate an act it gave in effect to the presiding officer a greater veto power than was possessed by the Governor. (Com’rs v. Higginbotham, 17 Kan., 74.) No journal entry was required.

On the other hand, in Texas a provision similar to the one we are considering was held to be mandatory. (Hunt v. State, 22 Tex. App., 396.)

The larg-er number of cases dealing with this question seem to have arisen in reference either to a constitutional amendment, a provision for entering on the journal the yeas and nays on the final passage of a bill, or a provision that no bill shall be passed containing more than one subject, which shall be clearly stated in the title. And as to those matters the weight of authority seems to be that the provisions are mandatory.

The evident purpose of Section 28 and its requirements may be said to furnish some cogent reasons for'holding it to be mandatory. It is obviously intended that the final act before the bill goes to the Governor shall be done publicly and not privately; and that the house shall be apprised of the fact that a certain measure receives the authenticating signature of its presiding officer. Hence should there be a valid objection, either because of mistakes or otherwise, an opportunity would be offered- for its presentation. In a certain sense the act of signing is an act of the body itself, although the signature appended is that of the officer, since the latter, in that matter, represents the body whose presiding officer he is, and no objection is interposed to his performance of the required act. Under this provision the officer may not lawfully append his signature to the bill during a recess or adjournment of the body. He may not do so after it has adjourned finally and its labors have terminated. That he shall do so in the manner prescribed, it is provided that his act be noted on the journal, which contains a record of only those proceedings occurring while the body is in session.

A construction that the provision is merely directory, so far as interference by the courts is concerned, would permit the officer to sign any and all bills in his room out of the hearing and presence of the house, and even during recess or after final adjournment; and the safeguard intended by the provision might be entirely overthrown. It is a matter of legislative history in this State that during a prolonged struggle in the attempt to elect a United States Senator, immediately after the close of a joint session for that purpose, the House of Representatives, upon motion of 'a member, evidently offered and adopted without reflection, was suddenly adjourned; and that at the time several enrolled acts were upon the Speaker’s table awaiting his official signature. His power to sign them had ceased, and he did not attempt to do so. It'is not necessary to enter upon a discussion of the possible result had the Speaker signed the bills after such adjournment, and had they been delivered to and approved by the Governor, should the constitutional requirement be held directory merely. It may be urged, indeed, that as the acts had in reality passed the Legislature, no injury could have resulted to the people. But a provision solemnly constituted a part of the fundamental law would have been violated, and it is doubtful whether it could lead to other than disastrous consequences. We are not suggesting that any presiding officer would wilfully disobey a plain mandate of the constitution. Our purpose merely is .to refer to the possibility of such an occurrence.

Notwithstanding this discussion of the construction to be given to a constitutional provision, it is not intended to commit the court upon any proposition not essential to the determination of the question before us. And, unless the entries in the journal shall be found insufficient to amount to a compliance with the constitution in the respect complained of, it will not become necessary to decide whether the provisions of Section 28 are mandatory or otherwise. We have deemed it not improper to show the condition of the law as resting upon the adjudged cases, sufficiently at least to suggest that in all events the far safest course for the Legislature to pursue is to see to it that the requirements are in every particular obeyed.

For our present purpose, in 'continuing the consideration of the questions presented, it may be assumed, without deciding it, that Section 28 is a mandatory provision of the constitution.

As will be observed when we come to an examination of the journal, it is not altogether silent respecting the action of the Speaker in regard to signing the act in controversy; although it is but fair to say that counsel for the relator so construes the entry in dispute as to practically render it silent as to the signing of that particular act. We think, however, that it must be admitted that there was an attempt even as to that act to make an entry in regard to signing. The question, therefore, arises, what kind of an entry is necessary or sufficient to answer the requirements? Upon this'point it is very properly conceded that the entry must amount to a substantial compliance with the constitu'tional provision, and counsel for relator argues that to constitute a substantial compliance the entry must of itself convey to the mind “the fact of signing;” and he says that if there appears such an entry, then from that record it may be presumed that the signing occurred in the presence of the House after the title of the act had been publicly read.

Legislative journals are usually prepared from “loose memoranda, made in the pressure of business, and amid the distractions of a numerous assembly.” They are not generally prepared by persons skilled in the technical construction of laws.

The constitution itself does not prescribe the language to be employed in noting upon the journal “the fact of signing.” It is not reasonably to be expected, therefore, that every one who may be selected to keep the journal will make the entry in the same words, nor perhaps with the same particularity. In construing an entry of this character, it is incumbent upon the court to continue to indulge the general presumption of the regularity of the passage of the act assailed, and the authenticity of the signatures thereto attached. Upon an inspection of the enrolled act it is found that the Speaker of the House has signed it, and it is admitted that he did sign it. Indeed, the agreed statement of facts stipulates that it was “duly” signed; and counsel who presented this case amicus curiae lays some stress upon that stipulation. A strict interpretation of the admission possibly might bear out his contention that it covers compliance with the constitutional provision as to manner and time of signing. But we are not inclined in this very important matter to rest a conclusion upon an admission as to the performance of a constitutional requirement, when the proof thereof is to be found in a record of which the courts doubtless ought to take judicial notice, especially when the same is called to their attention, and, notwithstanding a possible admission, the latter is claim'ed to misrepresent the facts. But the Speaker did sign the enrolled act, and it was approved by the Governor, and deposited in the office designated by law. Hence the legal presumption follows until overthrown by competent evidence that it was signed as required by the constitution, and that the formalities required accompanied such signing.

With these observations we will proceed to consider the journal entry. At the outset let it be remarked that the House and Senate Journals show affirmatively that the act in controversy passed the respective bodies by a constitutional majority, and no complaint is made that it was not passed in the form and manner prescribed by the constitution, and with the proper entries in the journals; until it came to be signed by the Speaker of the House.

The hill for the act was introduced in the Senate as Senate File 42. After its passage and enrollment it was known as Senate, Enrolled Act No. 26. Bills introduced in the Senate are known as “Senate files” and those introduced in the House as “House bills,” each file and bill being designated by a certain number. The usual custom observed in the journals of both houses was to refer to them by the use of initials, viz: S. F. for Senate file, and H. B. for House bill; and the enrolled acts were similarly designated, viz: “H. E. A.” for House enrolled acts, and “S. E. A.” for Senate enrolled acts.

The following entry appears in the House Journal, at page 474 of the printed copy, as a part of the proceedings of February 16, 1901, which was the last day of the session:

. “Signing oe Bills.

“The Honorable Speaker announced that he was about to sign the following H. E. A.s: H. E. A. No. 56, entitled House Bill No. 102, by C. E. Shaw, A bill for ‘An act to amend and re-enact Sections 891 and 894 of the Revised Statutes, 1899, relating to Water Commissioners.’ ”

Then follow six other paragraphs, mentioning in .each an “H. E. A.” by number and title, as well as by number of original bill. And then appears the following without further explanation:

“S. E. A. No. 20, entitled S. F. No. 26, by Mr. Thomas.

“S. E. A. No. 25, entitled Senate File No. 45, by Mr. Sullivan.

“S. E. A. No. 16, entitled S. F. No. 15, by Mr. Thomas.”

Then follow in the same manner reference to eight other Senate enrolled acts, and then appears the following:

“S. E. A. No. 26, entitled S. F. No. 42, by Mr. McGill, A bill.for ‘An act to amend and re-enact Sections 2178, 2180 and 2183 of the Revised Statutes of 1899,. and to repeal Sections 2179, 2181, 2182, 2185 and 2186 of the Revised Statutes of 1899; relating to gaming.’ ”

The entry immediately preceding the heading, “Signing of Bills,” is a report from the House Committee on Enrollment, showing the due enrollment of several House hills; and immediately following the entry as to Senate Enrolled Act No. 26 is an entry showing that, on motion of a member, the House resolved itself into a Committee of the Whole for the consideration of bills and resolutions on the general file. And the record of proceedings com tinues for several pages until final adjournment is recorded.

It thus appears that, at the time of the announcement of the Speaker recorded as above mentioned, the Hquse was in session.

Two points are urged against the sufficiency of this entry — first, that a statement that the Speaker announced that he was “about to sign the following,” etc., without more, is not a statement or entry of the “fact of signing;” and, second, that the announcement recorded is that he was about to sign the “following H. E. A.s,” and that the entry fails to connect any announcement or act of the Speaker with the Senate enrolled acts which are referred to following the description of the House enrolled 'acts.

It must be confessed that the argument possesses considerable force, and that the question is a serious one and of no little difficulty. In the first place, let us inquire what intention is manifested by the entry? It is evident that the words commencing with the heading, “Signing of Bills,” and ending with the mention and description of S. E. A. No. 26, are intended as one entry and upon one subject. This is apparent not only from the context, but from the entries immediately preceding and following it.

Throughout the journal the various entries are explained by headings indicating in a general way the subject or matter that is to follow. For example, whenever the House resolved itself into a Committee of the Whole, the entry thereof is preceded by the heading, “Committee of the Whole.” And so we find the following headings: “Privileged Reports,” “Introduction, Reading and Reference of Bills,” “Communication from the Senate,” “Second Reading of Bills,” “Bills on Final Passage,” etc. And usually, it may be said, the various entries are separated and distinguished by characteristic captions. Immediately preceding the disputed entry appears two reports from the Committee .on Enrollment, under the explanatory title, “Privileged Reports.” Directly following the entry in question is the heading, “Committee of the Whole.” Moreover, in various places in the journal, under the title, “Signing of Bills,” House enrolled acts and Senate enrolled acts are included in the same announcement and the entry thereof. At page 472, under such a heading, it is recorded that'-“Mr. Speaker announced that he was about to sign:” and then follows the description by number and title of one S. E. A. and several House enrolled acts. It was not the custom, therefore, for the clerk to keep the record of the signing or the announcement of the Speaker that he was about to sign the bills originating in the House in entries separate from those originating in the Senate.

The Speaker may have announced that he was about to sign the following House enrolled acts, and then, as he signed them, read their title and number, and without any reiteration of his intention proceeded to announce or read Senate enrolled acts by number and title, after finishing signing those of the House, and if so, it cannot be doubted but that the Blouse would have naturally understood that he was signing the Senate acts so mentioned.

And, in regard to this entry, while it is open to the technical objection that it does not, in so many words, state that the Speaker announced his intention of signing the said list of Senate enrolled acts, such is the natural and reasonable interpretation of the entry. And there is nothing elsewhere in the journal to disturb that interpretation. The list of acts is not associated in that place with any other- procedure. No other entry records their signing or any announcement thereof in the House; and there is absolutely nothing upon which to found any misunderstanding of the record. And, moreover, the Senate Journal shows the signing of the same acts on the same day by the President of the Senate.

Therefore, we understand and construe the journal as showing, by the entry aforesaid, that the Speaker announced that he was about to sign, among other bills, Senate Enrolled Act No. 26. What then is the force and effect of the entry in respect to the constitutional requirement?

An examination of the House Journal discloses that, under the same title or heading, “Signing of Bills,” the action taken was recorded in one of two ways: either that “the Speaker announced that he was about to sign” or that “the Speaker announced the signing” of certain described bills or enrolled acts, and the former expression is the one more frequently employed.

Now, it is argued with much force that the statement of the announcement that the Speaker is about to sign cannot convey to the mind the fact of signing; that such a statement mentions no more than an announced purpose or intention, which may or may not be carried out; and that the court is not permitted to indulge any presumption from such an announcement or the journal entry thereof. And it is argued also that the entry is not aided materially by the caption, “Signing of Bills.”

In determining what will constitute a substantial compliance with the requirement, it is difficult, if not impossible, to draw a line of distinction between sufficient and insufficient entries. But the substance should not be sac-, rificed to the shadow. The journal entry required is not the substance. It is the evidence merely of compliance with the form which has been prescribed by the constitution. The material things which the constitution requires is that each bill shall be signed by the presiding officers, and that it shall be so signed in the presence of the respective bodies over which they preside, and .after its title shall have been publicly read. We have already adverted to the objects of this requirement. .We know that the bill in question was signed. In the absence of the provision for a journal entry, the presumption would follow that the signing occurred in the required place and manner.

It is the manifest design of the requirement to prevent the surreptitious authentication of any measure as the act of the Legislature. This is accomplished by a public reference to the act to be authenticated, and the signing thereof in the presence of the body over which the officer presides. It is impossible to escape the conclusion that when the Speaker announced that he was about to sign a bill, referring to it by number and title, the House was then as fully informed, for all practical purposes, as it would have been by a statement that he was signing or had signed the bill. The act is thereby relieved of all privacy; all opportunity for fraud or deception in regard to the matter is gone; and the beneficent purpose of the substantial requirement is fulfilled. Hence we conceive that the courts should not apply a technical construction to an entry evidently intended as a compliance with the constitution. Again, we think it is not permissible for the court to eliminate all consideration of the fact that the Speaker’s signature appears upon the enrolled act. We are convinced that the court should not discard such an essential and important item of evidence that will strongly appeal to the ordinary mind, when we come to interpret the effect of the journal entry. And we think this is so without disputing the proposition that the journal is the ultimate and conclusive evidence as to the fact of signing at the time and place required. But the entry itself is to be examined, and its force determined in the light of surrounding circumstances.

As to the mere fact of signing, we think the journal entry is neither the ultimate nor conclusive evidence. The signature attached to the document is the best and most satisfactory evidence of.that fact. The journal entry is for a different purpose. The object of the requirement for a journal entry of the fact of signing is clearly the perpetuation of record evidence of the highest character of the time and place when the signing occurred; thus showing that it occurred in compliance with the constitution. It might be conceded that, in the absence of the Speaker’s signature to the enrolled act, the journal record of an announcement that he was “about to sign” would be insufficient'to prove that it had been signed. And it might even be conceded that, upon a strict and technical reading, it would not necessarily imply that the announcement was followed by the act of signing. But the word “about” is a relative term. “It may indicate one thing when applied to one state of facts, and another under different circumstances.” (Von Lingen v. Davidson, 4 Fed., 346.) In the case cited “about to sail,” applied to a ship, was held to mean “about ready to sail;” and the meaning of the word was held dependent largely upon the understanding and expectation of the parties. And the court said: “Since ‘about’ may mean a longer or shorter period, according to circumstances, these circumstances tend to show what limitation the parties put upon it in this transaction.” That was a case arising under contract, and the word had reference to length of time.

Various definitions are given the word. Generally it imports nearness in time, quantity, quality, number or degree. (Bouvier’s Law Dict., Rawles Revision.) But it is also defined by the lexicographers as “concerned in; engaged in; as, what is he about?” (Century Dict.) “In concern with; engaged in; intent on.” (Webster’s International Dict.) If the sufficiency of the entry depends upon the significance of the word “about,” the meaning must he determined by reference to the subject matter. Had the entry stated that the Speaker was about signing the bills, omitting the preposition “to,” it would not be difficult to apply the above definitions, as indicating not only a purpose of the Speaker, but his present acts, viz: that he was then engaged in signing the bills. Yet the same language might also indicate that he was merely ready to sign. Now, it may be admitted that to a casual reader there appears to be a slight difference between “about signing” and “about to sign;” and that the latter expression is more apt to convey the impression that the act, though immediately contemplated, has not been performed. But it certainly means, if no more, that the act is in immediate contemplation. In the connection where we find it, the expression signifies at least that the Speaker was then, that is to say, immediately, without delay, going to sign. The journals elsewhere disclose that- the bills named were .then ready for signature, having duly passed both bodies, and been duly and correctly enrolled.

Applied to the subject matter, and considering the caption of the entry, viz: “Signing of Bills,” it occurs to us that it is not a strained construction to say that the record denotes that the Speaker was at that time engaged in the act of signing the several bills described in the entry. The caption may not of itself be sufficient to evidence the fact of signing, although it would - seem to be persuasive of such fact. Nevertheless, it should not be altogether disregarded. In our opinion, it is to be considered as explanatory of the entry. It tends strongly to unfold the meaning of the words that follow, or the sense in which they were employed.

The case then presents this situation: It is admitted that the enrolled act bears the Speaker’s signature; and it appears that with due formality the bill passed both houses by a constitutional majority. It duly reached the Governor and obtained his approval. The intent is evident to comply with the constitutional requirement of Section 28, Article 3, as to journal entry; and the entry made corresponds with the entries made in respect to a large majority of the acts of that Legislature, clearly indicating a knowledge of the requirement and a belief that it had been complied with. No form of entry is prescribed by the constitution, and substantial compliance is all that is necessary. The object of the requirement as to entry of the fact of signing on the journal is not so much to furnish evidence of signing, as that the bill was signed at the time and place required. The plain purpose of the provision as to time and manner is the prevention of private or surreptitious action on the part of the presiding officer. In view of the well settled principle that the contrary must be made clearly to appear, before the presumption of regularity arising from an enrolled act appearing to have been properly signed and approved, can be overthrown, and the conditions under which legislative journals are usually prepared, they ought not to be construed technically, but they should be sustained as sufficient whenever it is possible to reasonably so construe them.

In view of the facts, and for the reasons aforesaid, we think that the journal entry in question must be held to amount to a substantial compliance with the constitution.

It is always a matter of very grave importance to decide upon the constitutionality of an act of the Legislature, and a statute should be held void only where it is shown that there has been a clear violation of the constitution. Where there is any doubt, it is to be resolved in favor of the law. We have shown that the intention manifested by the journal record in dispute is to show the fact of signing. To overthrow the entry we are urged to apply a technical interpretation to certain words, so as to render it something less than was intended. The spirit at least of the constitutional provision has been complied with, and we conceive it to be our duty to give every reasonable presumption to the record made by the Legislature.

It was said in a Kansas case: “If there is any room to doubt as to what the journals of the Legislature show, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.” (State v. Francis, 26 Kan., 731; Chesney v. McClintock, 61 Kan., 94, 58 Pac., 993.)

The constitution of Alabama required the fact of signing to be entered on the journal of the House. A Senate message was sent to the House informing that body that certain bills had been signed by the President of the Senate, and requested thereto the signature of the Speaker of the House. Following the record of the message, under the caption, “Signing Bills,” it was entered that the Speaker, in the presence of the House, immediately after their titles had been publicly read by the clerk, signed the bills whose titles are set out in the foregoing Senate message. Immediately following that entry was a report of the House Committee on Enrollment showing the correct enrollment of divers House bills. And directly following the report appeared the following: “Signing Bills. The Speaker of the House; in the presence of the House, and immediately after their titles had been .publicly read by the clerk, signed the bills whose titles are set out in the foregoing message from the Senate.” No mention whatever was made of the bills included in the report of the committee. But the court held that, as a previous entry had been made showing the signing of the bills in the Senate message, and, after the report of the committee, no mes.sage from the Senate was before the House, but tlie report of the Enrollment Committee preceded the disputed entry as to signing bills, the description of the bills signed as those mentioned in the Senate message was an evident clerical misprison, and that the journal entry should be read as if the words “report of the Committee on Enrolled Bills” had been used instead of the words “message from the Senate.” And it was said 'that the journal corrected itself. (O’Hara v. State, 121 Ala., 28.) Now, it is evident that it might have been, and doubtless was, argued that the entry there in controversy was a mere repetition of the previous entry as to the Senate bills, and that there was an omission to state the fact of signing as to the bills, included in the report of the committee. But the court read the entry in the light of the surrounding circumstances and so as to carry out what was conceived to have been the intention of the clerk. And the conclusion of the court was stated to be that the journal affirmatively showed the fact of signing a bill in controversy which was one of those embraced in the report of the committee.

In Miesen v. Canfield, 64 Minn., 513, the court said that the courts will give to the entries in the journals the reasonable construction most favorable to the validity of the act, in recognition of. the well settled rule that the evidence must be very strong to overcome the presumption that a bill, duly authenticated, was constitutionally passed.

For the reasons above set forth, it is not necessary to decide the reserved questions numbered one to four, inclusive. Upon the fifth question the decision of the court is •that the journals of the Senate and House of Representatives of the Sixth State Legislature show that Senate File 42 was enacted in compliance with the requirements of Section 28 of Article 3 of the constitution.

Upon the sixth question the decision of the court is that Chapter 65 of the laws of 1901 is a valid and constitutionally enacted statute of Wyoming.

The seventh question is answered in the negative, for the reason that the sections of the Revised Statutes named in said question were repealed by said Chapter 65 of the laws of 1901.

CoRN, C. J., and Knight, J., concur.