State ex rel. McKinley v. Martin

48 So. 846 | Ala. | 1909

SIMPSON, J.

This appeal is from the order of the circuit judge denying a writ of quo warranto to the respondent to test his right to the office of alderman in the city of Birmingham, etc. The substance of the petition is that the “act to alter or rearrange the boundary lines of the city of Birmingham,” approved August 8, 1907, (Loc. Acts 1907, p. 902), known as the “Greater Birmingham Act,” having become a law, and an election thereunder held on January 6,1908, the subsequent election for attaching the city of Avondale to said city of Birmingham, held June 6, 1908, being within the six months fixed by statute, within which no other election could be held, is void, and that therefore the election of the respondent, as a result of said election, is void.

When this question was recently before this court, in the case of State ex rel. Sigsbee, et al. v. City of Birmingham, et al., Infra 48 South. 843, the only question raised by the pleading and insisted on by counsel was as to whether section 3 of said “Greater Birmingham Act” was violative of paragraph 29 of section 104 of the Constitution of 1901. It is now insisted that said “Greater Birmingham Act” is void, because the journals of the Legislature show that the requirements of the Constitution were not complied with in the pasage of the bill through the Senate. The question now before the court was not involved in that decision. The case of M. & A. of Wetumpka v. Wetumpka W Co., 63 Ala. 611, does not touch this question, but decides merely that this court will take judicial notice of the charter of a municipal corporation.

This court has frequently decided, both before and since the adoption of our present Constitution, that when the question is properly presented the court will “go behind the statute of the legislative records, to ascertain whether it has a legal existence.” (Jones v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115, 17 Ab. Rep. 28; Moog v. Randolph, 77 Ala. 597; Sayre v. Pollard, 77 Ala. 608; Walker v. City Council of Montgomery, 139 Ala. 468, 36 South. 23) ; but the court has never undertaken to go into an examination of the journals, Avhen no suggestion is made of a defect therein. On the contrary, in a case which was not reported, this court refused to examine the journals on the mere general suggestion that error was apparent therein, Avithout calling the attention of the court to the particular error. This rule is manifestly correct; for, in the numerous constitutional questions which come before this court, it Avould entail an enormous, and in most cases a fruitless, labor on the court to make an exhaustive investigation through the journals of both the Senate and the House. It is but reasonable, then, to presume that, if the diligenec of counsel has not discovered any error in the journals, there is no failure to comply with the law therein shoAvn, and that the act is constitutional on that point.

Our attention being now called to it, we find, from an examination of the, Senate Journal of 1907, that House Bill No. 929, “to alter or rearrange the boundary lines of the city of Birmingham,” was not passed in accordance Avith the requirements of the Constitution. Section 63 of the Constitution is imperative to the effect that, on final passage of a bill, the vote must be “taken, by yeas and nays, the names of the members voting for and against the same be entered upon the journals, and a majority of each house be recorded thereon as voting-in its favor.” The only official journal is that AAhich is filed in the office of the Secretary of State, in accordance with law. While, for the convenience and information of the public, a printed journal is published, yet, where there is a discrepancy, the record in the office of the Secretary of State must govern. Referring to this original record, we find that while, on the final passage of this bill, it is stated that there were 14 yeas and 14 nays, and that the Lieutenant-Governor gave the casting vote in favor of the bill, and, while the names of those voting for the bill are set' out, the names of those voting against it do not appear, and those voting for it do not constitute a quorum of the Senate.

It is insisted, however, that, inasmuch as the journal shows that the Governor returned the bill, suggesting an amendment, and that amendment was passed, and the fact, together with the yeas and nays, properly entered on the journal, this, being really the final passage of the bill, shows a sufficient compliance with section 63 of the Constitution. Section 125 of the Constitution provides for such return by the Governor, with the proposed amendment, and then provides -that the vote shall be taken on such amendment only, not on the entire bill as amended, and if both houses concur in the amendment the bill shall again be sent to the Governor and acted on by him as other bills. From the reading of said section it will be seen that no vote is taken on the bill as amended, but only on the amendment, and the journal shows that this was the only action taken. Consequently this vote cannot cure the defect, apparent on the journal, in the passage of the bill.

The relator offered to prove by the witness Kyle that the latter was Secretary of the Senate of 1907, and kept the journals, and that the printed copy is correct, and sought also to introduce, in connection with his testimony, certified copies of the original bill, with endorsements, showing that the law had been complied with, which was excluded by the court; and said action of the court is here assigned as error. The Constitution requires the requisite facts to be shown by the “journals,” and “to the journals only, of the two houses, which constitute the memorial of legislative proceedings, can we look, to ascertain the nature, character, and extent” of the action taken by the body, “and, where the journals fail to disclose the nature and character of” the action, “it is not permissible to resort to other evidence for that purpose.” — Jackson v. State,, 131 Ala. 21, 24, 31 South. 380, 381. “The journals can neither be contradicted nor amplified by loose memoranda made by clerical officers of the house. To these the courts cannot look for any purpose.” — Ex parte Howard-Harrisan Iron Co., 119 Ala. 491, 24 South. 516, 72 Am. St. Rep. 928; 5 Mayfield’s Dig. p: 194, § 41.

It results that said “Greater Birmingham Act” never became a law. The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and Anderson, McClellan, and Mayfield, JJ., concur.