Cox v. Stults Eagle Drug Co.

The purpose of this action is to test the validity of House Bill No. 146, commonly known as the "Privilege-Sales Tax" which was certified to the Secretary of State as one of the acts passed by the eleventh legislature. The plaintiff, Stults Eagle Drug Company, a corporation, filed a complaint against the state officers charged with its enforcement seeking to secure from the court a declaratory judgment determining whether it was passed in accordance with the provisions of the Constitution, and, if it was, whether it is now in effect or will become so only after the expiration of ninety days from the close of the eleventh legislature. The trial court held it to be wholly void, and the defendants have brought the matter to this court for review.

It appears from the complaint that this bill, which contains a section declaring it to be an emergency measure, passed the House of Representatives in which it originated by a vote of two-thirds of its membership and was transmitted to the Senate, which amended it in several important particulars and then passed it as amended by a two-thirds vote of its membership. Thereupon it was returned to the house, which concurred in the Senate amendments by a vote of 38 yeas to 26 nays, the membership thereof being 64. Notwithstanding the measure contained the emergency clause and the amendments were approved by less than two-thirds, the Speaker of the House declared it passed by that body, whereupon it was presented to the Governor and by him approved. These facts, including the vote concurring in the Senate amendments, appear upon the enrolled bill as filed in the office of the Secretary of State. At the trial the plaintiff offered in evidence and the court received over the objection of the defendants a copy of that part of the House Journal containing the amendments made by the Senate.

The principal assignment is that the court erred in rendering judgment that the bill was not constitutionally passed. The basis upon which this alleged error rests is, to state it in the language of appellants, that "the final passage of a measure is the vote taken by a house upon the third reading of the measure upon the question whether or not it shall become a law, and does not include a vote subsequently taken upon concurring in amendments made by the other house." The correctness of this contention depends upon the meaning of certain provisions of the Constitution, chief among which is section 12, part 2, article 4, which reads as follows:

"Every bill shall be read by sections on three different days, unless in case of emergency, two-thirds of either House deem it expedient to dispense with this rule; but the reading of a bill by sections on its final passage shall in no case be dispensed with, and the vote on the final passage of any bill or joint resolution shall be taken by ayes and nays on roll call. Every measure when finally passed shall be presented to the Governor for his approval or disapproval."

It is, of course, plain that if the words, "final passage," as used in the first sentence of this section, mean the vote of each house taken by ayes and nays on roll call following the third reading of the measure, House Bill No. 146 is a law now and the contention of appellants should be upheld; but to my mind this is not the meaning to be given them when the facts which are being dealt with are similar to those in this case. It is clear that "final passage" of a bill is had in either house of the legislature when it receives the required vote taken by ayes and nays on roll call following the third reading of a bill, because there is then nothing further for that house to do relative to it other than transmit it to the other branch of the legislature for its consideration; and if that house approve it as passed in the other by an aye and nay vote taken on roll call, such action constitutes not merely final passage in that branch of the legislature also, but "final passage" of the bill within the meaning of section 12, because it has passed both houses in the same form and there is nothing further for either of them to do with it to complete it. But in case the house to which it is transmitted amends it before passing it on third reading and as amended returns it to the house in which it originated, it is clear that concurrence in the amendments by this house completes the passage of the bill and, to my mind, this act constitutes "final passage" within the meaning of the Constitution.

The authorities are somewhat divided as to the meaning of the term when used in this connection, some of them holding, as appellants contend, that it refers to the passage on third reading, the vote being taken by ayes and nays on roll call. Among those taking this view may be mentioned the following:State v. Dillon, 42 Fla. 95, 28 So. 781; Johnson v. Cityof Great Falls, 38 Mont. 369, 99 P. 1059, 16 Ann. Cas. 974;State v. Crowe, 130 Ark. 272, 197 S.W. 4, Ann. Cas. 1918D 460, L.R.A. 1918A 567. But those decisions which hold that concurrence by the house in which a bill originates and is passed with the amendments made by the other house constitutes "final passage" announce, as I see it, the better rule, because they are based on the situation that actually exists and on reason so sound that it is unanswerable. One of the cases on the subject most frequently quoted is Norman v. Kentucky Board ofManagers, etc., 93 Ky. 537, 20 S.W. 901, 18 L.R.A. 556. The court was there considering the validity of an act that originated in the Senate where it passed by the proper vote, was transmitted to the other house where it was amended and there passed by the required vote, and then returned to the Senate which concurred in the house amendments by a vote of less than a majority of the members elected to the Senate, notwithstanding the Constitution of that state provided that any act appropriating money should be passed by a majority of the elected membership of each house. In giving its reasons for holding that concurrence in the amendments and not the passage of the bill on third reading in the respective houses constituted final passage, the court used the following language which, to my mind, is absolutely conclusive on the subject and needs no elaboration:

"It is conceded by the counsel for the appellees, and seems plain, that this mode of proceeding did not conform to the constitution. It complied with it in neither letter nor spirit. The object of the section above cited was to have the assent of a majority of all the members elected to each house to all the provisions of the act, and that this should appear by a yea and nay vote entered upon its journal. If a bill, after passing one house in the proper manner, and then, after amendment, passing the other house in like manner, could come back to the house in which it originated, and be adopted by a majority of those voting, or a quorum, it would defeat this object, and render the section ineffectual. Let us look at it practically. An appropriation bill of $100 originates in the senate, and is properly passed. It goes to the house, where it is amended by making the sum $10,000, and is then properly passed by it. It returns to the senate for concurrence, and is adopted, as amended, by a majority of those present, without a yea and nay vote. Can it be well contended that this would be a compliance with the constitution? . . .

"It is true it has been held that the ``final passage' of a bill means when it first passes the body, and not when it returns to it, after amendment, for adoption; and it is said that the constitutional provision as to the number of votes, and the entry of the yea and nay vote on the journal, does not apply to amendments, or the reports of conference committees. If so, then, no matter how material the change, a majority vote of a quorum may pass the bill. The words ``final passage,' as used in our constitution, mean final passage. They do not mean some passage before the final one, but the last one. They do not mean the passage of a part of a bill, or what is first introduced, and which may, by reason of amendment, become the least important. If so, then the body may pass what is practically a new bill in a manner counter to both the letter and spirit of the constitution. When the bill was voted on in the senate, as amended, and after its return from the house, there never was any further action by the senate. It was the final vote, and therefore its final passage; and, being so, a majority vote of all the members elected, with an entry by yea and nay vote upon the journal, was necessary to its constitutional enactment. The bill, as approved by the speakers of the two houses and by the governor, never was passed by the senate, by a majority of all its members, nor by a yea and nay vote."

To the same effect are the following: Roane Iron Co. v.Francis, 130 Tenn. 694, 172 S.W. 816; Ex parte May,118 Tex. Crim. 165, 40 S.W.2d 811; Cohn v. Kingsley, 5 Idaho 416,49 P. 985, 38 L.R.A. 74; Glenn v. Wray, 126 N.C. 730,36 S.E. 167.

That such is the proper construction of this term as used in the Constitution conclusively appears from that instrument itself. The last sentence of section 12, supra, is that "every measure when finally passed shall be presented to the Governor for his approval or disapproval"; hence, if final passage means the final action of one house in passing on third reading a measure transmitted to it by the house in which it originated, its duty is then, not to return it to that body for concurrence in the amendments, but to present it to the Governor for approval or disapproval, regardless of any amendments it may have made, because presenting it to the Governor is the next step to be taken when a bill has been finally passed. The mere statement of this proposition not only shows the utter fallacy of such a contention but establishes beyond peradventure of doubt that in the minds of the framers of the Constitution the last vote of either house on a bill before presenting it to the Governor constitutes its final passage. The terms "finally passed" and "final passage," as used in this section, mean the same thing, and that is the vote in either house that completes the passage of the measure. This meaning accords with the usual practice of parliamentary bodies and is so generally recognized that the Senate of Kansas, it appears from Stephens v. Board ofCommrs., 79 Kan. 153, 98 P. 790, even put it in the form of a rule. Rule 39 of that body, when the decision was rendered, read:

"A vote to concur in House amendments to a Senate Bill or a vote to adopt the report of a conference committee shall be considered the final passage of a bill and shall be taken by the yeas and nays and entered on the journal."

House Bill 146 contains a section declaring it to be an emergency measure and subsection 3 of section 1, part 1, article 4 of the Constitution provides "that no such emergency measure shall be considered passed by the Legislature unless it shall . . . be approved by the affirmative votes of two-thirds of the members elected to each House of the Legislature, taken by roll call of ayes and nays, and also approved by the Governor." When, therefore, the motion to concur in the Senate amendments failed to receive the affirmative votes of forty-three members of the House, that being two-thirds of its elected membership of 64, passage was never completed, hence the bill cannot "be considered passed by the Legislature." To hold that any of the preceding votes in either house constituted final passage is to hold that the bill became a law, notwithstanding it was an emergency measure requiring a two-thirds vote and notwithstanding the Senate so amended it that five members of the House who had supported it when it passed that body, declined to concur in the amendments and, therefore, to approve it as amended. A bill carrying the emergency may, it is true, be amended in either house prior to third reading by a majority of those voting because there yet remains the necessity of each body's passing it by two-thirds on that reading, but this does not signify that amendments made by the house to which it has been transmitted may be concurred in by a like majority of the house to which it is returned, because at that stage of the procedure there seems to be no requirement that the bill, as it stands after a majority of even a quorum of the house in which it originated has accepted the amendments, shall be voted on as amended. This being true, the only opportunity either house has to pass upon amendments made by the other is on the motion to concur, and since the changes made may be so material in effect as to make a new and different bill they must be approved by the vote required to pass the measure originally. If this were not true, portions of an emergency bill might be passed by two-thirds and other portions (perhaps the more important) by a bare majority of the membership or less. It is plain that any rule that would permit such a course of action does not conform to the Constitution. The vote on concurrence, therefore, is the last and final vote on the bill in either house and to be effective must equal two-thirds of the membership of the house taking it. To give it any other effect means no more nor less than setting aside the provision of the Constitution which reserves to the people "the power to approve or reject at the polls any Act, or item, section, or part of any Act, of the Legislature," because the result of such a holding is that a bare majority, not two-thirds, may render immediately operative any act of the legislature.

Neither can I agree with the contention that the act, having received on final passage a majority of the votes of the members of the House of Representatives, will become operative ninety days following the close of the legislature. The excerpt quoted above from subsection 3, section 1, part 1, article 4, provides that "no such emergency measure shall be considered passed by the Legislature unless it shall . . . be approved by the affirmative votes of two-thirds of the members elected to each House of the Legislature, taken by roll call of ayes and nays," and, it occurs to me, that this language needs no construction. It is plain that no emergency measure shall be treated as passed unless it receives a two-thirds vote and, therefore, it cannot become operative ninety days after the close of the session enacting it any more than it could immediately upon passage. If this provision read that "no such measure shall be considered passed as an emergency," the contention of appellants, that it would become operative ninety days after the close of the session, might have merit, but inasmuch as it uses the all-inclusive term, "no such emergency measure," when referring to those not considered passed without the two-thirds vote, there is nothing more to say. The purpose of the emergency clause is to make a measure operative immediately upon passage, not ninety days thereafter, and when legislators support such a measure they do so with this thought in mind, never thinking for a moment that it will become a law at all in the absence of a two-thirds vote in its favor. Members frequently support measures containing the emergency clause when they would not do so without it, because its nature is such as to demand its immediate operation, and to postpone this date ninety days and render it subject to the referendum would probably defeat its purpose. Clearly such a measure could not become operative ninety days hence when the emergency is inserted to render it effective immediately or not at all, since it would not have contained this clause had the purpose been to make it operative at some future date.

Even though it be true that the measure did not receive a two-thirds vote of the house membership on final passage appellants contend that there is no way by which the court may be advised of this fact for the reason that the enrolled act filed with the Secretary of State is conclusive thereto, and the legislative journal may not be examined or looked into for the purpose of determining if it were in fact passed in accordance with constitutional requirements. To support this view they citeAllen v. State, 14 Ariz. 458, 130 P. 1114, 44 L.R.A. (N.S.) 468, in which this court held substantially as contended. The situation with which we are confronted here, however, is not one calling necessarily for a departure from this rule because along with House Bill 146 as filed in the office of the Secretary of State appears over the signatures of the Speaker and chief clerk of the house a statement that it passed that body by a vote of 38 ayes and 26 nays, which is 5 short of a two-thirds majority. And when we learn from the bill itself through the statement of the presiding officer both that it passed the house and that it did so by a certain vote no other facts are needed to enable us to determine whether it finally passed in accordance with the provisions of the Constitution. It is not then necessary to look to the House Journal for the defect, a situation that Allen v.State, supra, recognizes, for in the opinion in that case the court quotes approvingly the following excerpt from Green v.Weller, 32 Miss. 690:

"It may be that legislative acts may be passed without a compliance with the requirements of the constitution. If such defect or violation appear on the face of the act, or by that which constitutes the record, which can be judicially noticed, the power of the court to determine the question is indisputable."

It may be that the vote by which the house concurred in the Senate amendments is a copy of an entry in the House Journal and that it, no more than the vote by which the bill passed on third reading in each house, is specifically required by the Constitution to be placed upon the enrolled bill, yet it is also true that that instrument nowhere directs or even intimates that it shall not be done, and such has been the procedure followed since the first state legislature and is certainly commendable. If, however, the rule announced in the Allen case requires us to shut our eyes to its presence there merely because the Constitution has not specifically directed that it be placed on the enrolled bill, and it is our duty in consequence of this to consider it as mere surplusage, I would be unable to follow the holding in that case to this extent and thus treat the House Journal as a sealed book where a matter so vital as the vote required to pass a bill is concerned. If the insufficiency of the vote had not appeared upon the enrolled act itself and the plaintiff had offered to prove by the House Journal that it did not receive the necessary vote and avowed that that record, not by its silence but by an entry made therein, would disclose this fact, it would undoubtedly have been error for the trial court to have refused to receive it in evidence. While the enrolled act itself is strong evidence that it was properly enacted and an attack upon its validity upon any trivial ground should not be allowed, yet the presumption that it received the proper vote is not conclusive and may be rebutted. If the claim were that the act did not pass because the legislature failed to observe certain constitutional provisions and that this was true because compliance therewith did not affirmatively appear in the journal, it is probable that the better rule would be to permit the presumption that the legislature did its duty as prescribed by the Constitution to prevail, and uphold the act; but where the claim concerns the fundamental requirement that a measure shall receive a vote of a certain percentage of the membership of the house involved before it passes and this failure affirmatively appears on the journal, it would, to my mind, be the duty of the court to admit the journal in evidence, otherwise there is no way by which an act which has received less than the required vote but has been certified by the proper officer as passed can be set aside. The rule which to my mind should govern in the situation with which we are here confronted appears in the following syllabus of Ritzman v. Campbell etal., 93 Ohio St. 246, 112 N.E. 591, Ann. Cas. 1918D 248, L.R.A. 1916E 1251:

"A duly enrolled bill, although publicly signed by the presiding officer of each house, in the presence of the house over which he presides, while the same was in session, and capable of doing business, and afterward approved by the Governor and filed by him with the secretary of state, may be impeached on the ground that it has not received a constitutional majority of the members elect of both branches of the General Assembly, and upon this question the legislative journals must provide the appropriate as well as the conclusive evidence."

See, also, Norman v. Board of Managers, etc., supra; In reDrainage District No. 1, 26 Idaho 311, 143 P. 299, L.R.A. 1915A 1210; Butler v. Kavanaugh, 103 Ark. 109, 146 S.W. 120;Denver v. Rubidge, 51 Colo. 224, 116 P. 1130; Neiberger v. McCullough, 253 Ill. 312, 97 N.E. 660; State v. Wagener,130 Minn. 424, 153 N.W. 749; Webb v. Carter, 129 Tenn. 182,165 S.W. 426.

For this court to permit a measure passed as was House Bill 146 to stand as law, upon the theory that the legislative and judicial departments of the government are co-ordinate and independent and that it would tend to destroy the independence of the legislative by making it subordinate to the judicial to allow the journal to impeach a final act of the legislature even on a matter so important as the vote by which it was enacted is no more nor less than saying that the legislature is not bound by constitutional mandates directed to it and that a measure may become law whether it receives the required vote or not merely because it has been certified by the presiding officer of the respective houses of the legislature as having passed and has been approved by the Governor.

After all is said and done there is no escape from the conclusion that to hold that House Bill 146 is a valid enactment is to say that the referendum may be defeated by less than a two-thirds vote of either house of the legislature, and this I cannot do even in the face of the emergency confronting the state. The remedy is with the legislature itself.

House Bill 146 did not receive the vote necessary to pass it and is void. The judgment of the trial court is, therefore, affirmed.

LAMSON, Superior Judge, concurs.

NOTE. — Judge LOCKWOOD being ill, Judge RICHARD LAMSON, of Yavapai county, was called to sit in this case.