State v. Algood

| Tenn. | Dec 31, 1888

Lurton J.

The relator was elected District Attorney for the Sixth Judicial Circuit at the general

election of August, 1886. White County, which, at the date of his election, was one of the counties composing this circuit, has, by the act of March 19, 1887, been taken out of the Sixth and placed in the Eifth Circuit, of which Defendant Algood is the District Attorney. This bill is filed for the purpose of determining the validity of the act by which this change has been made. The defendant, Algood, demurred to the bill. The demurrer was overruled, and defendant, by permission of the Chancellor, has appealed from the decree overruling the demurrer.

The first objection made by the bill to the validity of the act changing White from the one circrrit to the other is that the title of the act does not indicate the character of the amendment of the existing laws, and that it is therefore void, under Section 17 of Article II. of the State Constitution, which declares that “no bill shall become a law which embraces more than one subject, that subject to be expressed in the title.”

The title of the act in question is as follows: “An Act to amend an Act of the Extraordinary Session of 1885, passed June 11 and approved June 12, 1885, entitled ‘An Act to divide the State of Tennessee into judicial circuits and chancery divisions, and provide for the administration of justice and equity in the circuit and chancery and other inferior courts of this State, and to fix the time for holding the terms of said chancery, circuit, and other courts.’ ”

The criticism is that this title does not indicate the character of the proposed amendment. This is not necessary if, in fact, the amendment is germane to the original act and is embraced within the title of the original or amended act. In such case, the title of the original act being made a part of the title of the amendatory act, the particulars of the amendment need not be shown by the title. In the case of Hyman v. State, decided at Knoxville, September Term, 1888, and reported, we, upon full consideration, held “ that it is not important that the title of an amendatory act shall do more than recite the title or substance of an act amended, provided the amendment is germane to the subject of the oiiginal act and is embraced within the title of the oiiginal act.”

The amendment is undoubtedly germane to the subject of the original act, as indicated by its title. There is nothing in this objection. The title of the amendatory act is sufficient.

It is next urged that this act was never, in fact, passed by the G-eneral Assembly' in the manner prescribed by the Constitution. It appears from the Journal of the Senate that the bill, as originally introduced, was a Senate bill, and that it passed the Senate on three several readings, and was then transmitted to the House. The House Journal shows it to have passed its first and second readings as Senate Bill No. 262, and that it was then referred to a committee, who reported it back, and that “by unanimous consent Senate Bill Ho. 262, To fix the time of holding the courts in the Fourth Chancery Division, was taken up. The amendment offered hy Mr. Hill was adopted, and the hill passed third reading without call of the roll.” The amended bill was returned to the Senate, and the Senate Journal shows that the amendment was non-concurred in, on a call of the ayes and noes, hy a vote of eleven ayes and eleven noes, and that on the same day a motion to reconsider this vote was entered. It further appears that on a subsequent day a . second motion to reconsider this adverse vote was entered. The Journal is silent as to the ultimate disposition of these motions to reconsider, but it does recite that upon a day subsequent to both of these motions the Speaker of the Senate, in open session, announced that he had signed this bill. Subsequently the act was approved by the Governor, and it is found among the published official Acts of the Legislature. The complainant insists that, from the Journal of the Senate as above recited, it is affirmatively shown that this Senate Bill Ho. 262 never did pass the Senate after it had been amended hy the House, and that therefore the act is void.

In the ease of Brewer v. Mayor of Huntingdon, 2 Pickle, 787, we held that where it affirmatively appeared from the Journals of the Legislature that an act had not been passed in the manner required by the Constitution, that- the presumption arising from the fact that the Journal showed that the bill had been signed hy the Speakers in open session would not', overcome tbe affirmative proof from tbe -Journal tbat, in fact, tbe bill bad been defeated. The case under consideration differs from tbe case just cited in this: Tbat tbe same Journal which records tbe defeat of tbe amended bill shows a motion to reconsider this adverse vote. Before the bill could be finally disposed of it became nec-. essary to dispose of this motion to reconsider. Tbe Journal does not, therefore, show affirmatively tbat this bill was defeated, because it is silent as to tbe ultimate disposition of tbe motion to reconsider. Shall we presume tbat this motion to reconsider was never called up, or tbat it failed upon being called up ? or shall we, in favor of tbe validity of tbe law, presume tbat there was a reconsideration, and tbat the bill ultimately received tbe vote necessary to its passage? "We see from tbe Journal tbat subsequently the Speaker of tbe Senate, in open session, announced tbat be bad signed this bill; and this .solemn official act is noted upon tbe Journal, as required by the Constitution. What presumption arises from this evidence of tbe passage of tbe bill? We think tbe rule well settled tbat where tbe Journal does not affirmatively show tbe defeat of tbe bill, every reasonable presumption and ■ inference will be indulged in favor of the regularity of tbe passage of an act subsequently .signed in open session by tbe Speaker. This is tbe rule as announced by this Court in tbe case of State v. McConnell, 3 Lea, 333, and as followed by us in the case of Hays v. State, decided at Nashville in 1887, which case is referred to by Judge Snodgrass in announcing the opinion of the Court in the case of Brewer v. Huntingdon.

The Journal does not ’ show affirmatively that this bill did not pass. The motion to reconsider, being duly entered, postponed the final fate of the bill. We know, as a matter of history and common political experience, that it is not unusual for a bill to be defeated and the adverse vote subsequently reconsidered, and the bill finally passed. The Constitution requires that after a bill has passed three readings in each House, “it shall be signed by the respective Speakers in open session, the fact of such signing to be noted on the Journals.” ' The fact that, after an adverse vote, a mo-, tion to reconsider was entered, and that the Journal does not show any disposition of this motion, and that subsequently this bill was signed in open session by the Speaker of the Senate, as shown by the Journal, authorizes us to presume that the failure of the Journal to show the final passage of this bill is due to a clerical omission. This is, under the law applicable, the legitimate construction to be placed upon the whole record.

The next and last objection made to the validity of this act is that the Journal of the House shows affirmatively that this bill passed its third reading in the House without a call of the ayes and noes. This objection is rested upon Article II., Section 21, of the Constitution, which prescribes that “the ayes and noes shall be taken in each House upon the final passage of every .bill of a general character and bills making appropriations of public moneys; and the ayes and noes of the members on any question shall, at the request of any five of them, be entered on the Journal.”

Is this such a bill as requires the ayes and noes to be taken? This depends upon whether it is a bill making an appropriation of public moneys’ or a bill “ of a general character ” within the meaning of the Constitution. It is clearly not an appropriation bill. The very able counsel who have argued this cause for complainant insist that every law which is a public law is a bill of a general character. Any number of authorities have been cited to show that bills chartering banks and municipal corporations are public laws, and not private acts. This is conceded, but this is not the question. The Legislature is, by another provision of the Constitution, prohibited from passing any private or special acts. All laws must be general in the sense that they must apply to all alike. But if the framers of the Constitution used the phrase “laws of a general character” in contradistinction to private or special laws, then why was it necessary to add: “And laws making an appropriation of public moneys?” The greater would have included the less. Appropriation bills are not private or special laws. We think the phrase “laws of a 'general character” is used to distinguish general legislation — legislation in which the whole body of the people have, or may have, an 'interest — from legislation of a purely local character. Laws may be public in their objects and either general or local in then’ application. Thus, a law creating a new county, or changing a county line, or moving a county site, or creating a municipal corporation, would be public laws; and yet they would be local and not general in their application. They would not be laws of a general character, but laws of local application.

The act in question changed two counties from one to another circuit, and fixed the terms for the courts of one or two others. Such a law is not a “law of a general character,” but a law limited and local in its application. The constitutional provision relied upon was not applicable to such legislation.

It follows that the Act of 1887, changing White County from the Sixth to the Eiftli Circuit, was constitutionally enacted, and that Defendant Algood is the lawful District Attorney for that county.

The decree of the Chancellor will be reversed, the demurrer sustained, and the bill dismissed at cost of the relator, Whitson.