Rice v. Lonoke-Cabot Road Improvement District No. 11

Humphreys, J.

Appellant, and others similarly situated, instituted suit against appellee in the Lonoke Chancery Court to enjoin the ¡Board of Commissioners of the appellee district, and the assessors of said board, from proceeding to build, or attempting to build, any road within the proposed district, upon the ground that Act 669 of the Acts of 1919 of the Legislature of Arkansas, under which said district was created, is void, for the alleged reasons, first, that the bill was not presented to the Governor for approval within the time required by law; second, that the enrolled bill signed by the Governor was different from the engrossed bill passed by the Legislature, in this, that nineteen sections of land in township four north, range nine west, included in the engrossed bill, were omitted from the enrolled bill signed by the Governor.

Appellee filed answer, joining issue upon the material allegation set out in the complaint.

The cause was submitted to the court upon the merits, and, by decree, the act was upheld as valid'; where - upon the court dismissed appellant’s bill for the want of equity, from which dismissal an appeal has been dulv prosecuted to this court.

The undisputed facts are that Senate Bill No. 509 which is the bill in question, passed both houses of the Legislature in the words and form as originally intro duced, without modification or change in any respect: that the enrolled act of said Senate bill was approved by the Governor on April 3, 1919, on the twenty-first day after the adjournment of the Legislature, and was numbered Act 669 of the Acts of 1919; that the enrolled bill omitted from the engrossed bill, or the bill passed by both houses of the General Assembly, nineteen sections Of land in township four north, range nine west, which appeared in the engrossed bill as one of seven paragraphs describing the lands within the district; that the road to be improved runs from the town of Cabot, which .is in township four north, range nine west, to the public road in Improvement District No. 4; that the lands omitted from the enrolled bill were adjacent to the towns of Austin and Cabot, included in the bill, and to the road to be improved in said township and range; that the original, as well as the enrolled, bill is in the official archives of the Secretary of State, and was published by the Secretary of State as the law, including the omitted nineteen sections of land; that there is nothing on the journal records of either the House or Senate showing when the enrolled bill was presented to the Governor; that, under the rules, it was the duty of the Senate Enrolling Committee to present the bill to the Governor for approval.

The first question to be determined is whether the bill was presented to the Governor for approval within the time required by section 15, article 6 of the Constitution. That section requires that bills must be presented to the Governor within twenty days after adjournment of the session at which passed. Monroe v. Green, 71 Ark. 527. The record in the case just cited showed that the bill was presented to the Governor twenty-three days after the Legislature adjourned. In the instant case, the record is entirely silent as to when the bill was presented to the Governor for approval. This court will indulge the presumption, where the contrary does not affirmatively appear from the records of the General Assembly, that the Senate enrolling committee performed the duty imposed upon it to present the bill to the Governor within the time required by law for his consideration and approval or rejection. This rule of presumptions in favor of the validity of legislative enactments can not be more clearly stated than was done in the case of Harrington v. White, 131 Ark. 291. The rule formulated there is as follows: “An act of the Legislature signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the-contrary affirmatively appears from the record of the General Assembly.” The rule thus announced is sustained by the cases of Chicot County v. Davies, 40 Ark. 200; Glidewell v. Martin, 51 Ark. 559; State v. Corbett, 61 Ark. 226; State v. Bowman, 90 Ark. 174; Mechanics Building & Loan Association v. Coffman, 110 Ark. 269; and has been reannounced and sustained in the recent cases of Perry v. State, 139 Ark. 227, and Helena Water Co. v. Helena, 140 Ark. 597. The reason of this rule of presumptions is grounded in public policy and respect of a co-ordinate department of government, so said Mr. Justice Sanders in the case of Glidewell v. Martin, 51 Ark. 559. The reasons for the rule are so clearly and ably expressed by that profound master of law, the writer can not refrain from indulging in the following quotation ‘from him:

“From considerations of public policy and because of the respect due the action of a co-ordinate department of government, the courts, long since, began to supply the omissions of journal clerks by presumptions as to the regularity of the proceedings of the General Assembly. This has been found most salutary, and the attitude assumed by the judiciary in this regard, has gone far toward establishing and maintaining public confidence in the stability of legislative action. Many cases of flagrant hardship are thus prevented, while by the operation of the rule, few, if any, have sustained substantial injury. The courts are gravitating toward the English rule so thoroughly discussed by Mr. Justice Smith, in Chicot County v. Davies, 40 Ark. 200; for while they say that the enrolled bill is not conclusive of the valid enactment of the law, and that we may look beyond it to the journals, they supply by presumption everything necessary to its validity, save where the journal affirmatively shows a violation of the Constitution.”

It is suggested that the presumption must be indulged that the bill was presented to the Governor more than twenty days after the sine die adjournment of the Legislature because approved by the Governor more than twenty days thereafter. The approval of the bill by the Governor after the time fixed by law was unauthorized and in no wise affected the bill. Presumptions should not be founded on the unauthorized acts of officials. Presumptions are not indulged to strike down laws, but the validity of laws may be upheld by them. We think the only effect resulting from the unauthorized approval of the bill by the Governor was to corroborate the presumption that it was presented to him. In other words, the approval of the bill by the Governor lends credence to the presumption that the enrolling committee performed its duty by presenting the bill to him within the time required by law. It will be presumed therefore that the bill in question was presented to the Governor within twenty days after the sine die adjournment of the Legislature, and, not having been vetoed, became a law twenty days after said adjournment without his signature.

The chief insistence for reversal is that the bill approved by the Governor was a different bill from the bill passed by the Legislature. An enrolled bill, in legislative parlance, is a reproduction or copy of the identical bill passed by both houses of the General Assembly. The enrolling clerk, or committee, has no power or authority to modify a bill passed by the General Assembly in any respect. It follows that the purpose and intention of the Governor in signing an enrolled bill, or in allowing an enrolled bill to become a law without his signature, is to approve the bill passed by both branches of the Legislature, or to acquiesce in such bill becoming a law. In approving an enrolled bill, therefore, it may aptly be said that the Governor intends to, and does, approve the original or identical bill passed by the General Assembly. For this reason, additions, omissions or misprisions of the enrolling clerk in copying the bill to be signed by the Speaker of the House and President of the Senate and to be presented to the Governor, do not impair or invalidate the act. Otherwise, legislation would depend entirely upon the accuracy of the enrolling clerk and care of the enrolling committee. No rule of law is better established in this State than the rule to the effect that an enrolled bill is not conclusive of what bill was enacted. An enrolled bill may be impeached by an inspection of the original bill, indorsements thereon, journals and other official records of the Legislature and official records in the office of the Secretary of State. Arkansas State Fair Association v. Hodges, 190 Ark. 131; Helena Water Company v. Helena 140 Ark. 597; Booe v. Road Improvement District No. 4, 141 Ark. 140. If an enrolled bill signed by the President of the Senate and Speaker of the House is not conclusive and determinative of what bill was enacted by the General Assembly, no sound reason can be assigned why it should be conclusive and determinative of what bill the Governor approved. In other words, the additions, omissions or misprisions contained in an enrolled bill should not bind the Governor to the letter of the copy by reason of his approval any more than the Senate and House whose President and Speaker signed it. In the case of Haney v. State, 34 Ark. 263, this court corrected a manifest and material error in an enrolled bill which had been signed by the President of the Senate and Speaker of the House and the Governor, by inserting the word “fourth” for the word “fifth” so as to make the act conform to the intention of the Legislature in enacting, and the Governor in approving, it. The correction made to conform to the intention of the Legislature and Governor was material, because, unless made, the act was void. In making the correction, the court took occasion to say: “A mistake of this nature may be corrected by the courts, upon as sound principle as' a •mistake in a deed. It is not judicial legislation, nor judicial interference with the legislative will. It is in support of the legislative will, and wholly distinct from the reprehensible practice of warping legislation to suit the views of the courts as to correct policy.” The court, however, in making this correction threw out the warning that before correcting a bill so as to conform to the intention of the Legislature, “courts should be thoroughly and honestly satisfied of the legislative intent, irrespective of the policy of the act.”

It is apparent from the face of the enrolled bill that lands in township four north, range nine west, are intended to be included but were omitted in copying from the original bill. This is evidenced by the fact that the town of Cabot, in said township and range, is included in the district. Certainly, the town would not have been included in the district and the adjacent lands omitted. It is also evidenced by the fact that the road to be improved runs from Cabot to Lonoke, and, in doing so, passes through said township and range. It could not have been the intention to exclude lands adjacent to the proposed road in said township and range. By reference to the original bill published by the Legislature, it is apparent that the enrolling clerk omitted to incorporate in the enrolled bill the paragraph in the original bill describing nineteen sections of land traversed by the proposed road. The paragraph was in the -original bill and rendered the district symmetrical in form. It is true the omission from the enrolled bill constituted a material discrepancy between the enrolled and the original bill, but, nevertheless, the omission was a clerical error, apparent from the face of the bill, and what should have been incorporated in the enrolled bill is ascertainable from an inspection of the original bill in the office of the Secretary of State. Concerning just such an omission from an enrolled bill, or perhaps of one more material than in the instant case, this court used the following language in the case of Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330: “It is said that the words included in brackets in the fourth and fifth lines of section 2, Act 175, Acts 1913, were placed in the act by the Secretary of State without authority, and -that when the section is read eliminating those words, it is clear that the Legislature intended to take away the defense of contributory negligence only in death cases brought against corporations for damages. Eliminating those words from the section, appellant is perhaps correct in his contention that the act' would apply only in death cases, but upon examination of the original act in the office of the Secretary of State, we find that those words inserted by the Secretary of State were a part of the act, and were inadvertently omitted from the enrolled bill by the enrolling clerk. Without the use of the words inclosed in brackets, the section is almost meaningless or at least quite ambiguous. The failure to insert the words was an obvious omission or misprision of the enrolling clerk. The Secretary of State therefore properly inserted them in the printed act.”

The case last cited is directly in point and rules the instant case in this regard.

The judgment is affirmed.

McCulloch, C. J., and Hast, J., dissenting.