Smith v. Thompson

Upon submission of this case, it was assigned to the writer to prepare an opinion. An opinion was prepared which, upon presentation to the court, was opposed by the majority. The same is now filed as an expression of the opposite view. This better preserves the coherency and continuity of the writer's theory.

The act of the legislature involved seeks by its terms to amend many sections of the Code relating to the salaries of public officers, as specified in said act. The issues before us present only questions relating to challenging the constitutionality of the said act. The bill, which included the several sections and provisions now constituting chapter 89, Laws of the Forty-fifth General Assembly, is known and designated in both houses as Senate File No. 479. The procedure in the respective houses in relation to said Senate File No. 479 will be later set out in detail in this opinion.

Two of the propositions urged and relied upon by appellant will be here considered together. They are that the act contains a plurality of subjects and adopts a classification which is arbitrary, capricious, and without possible uniformity of operation.

It is provided by section 29, article III, of the constitution of this state that:

"Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. * * *"

It is also provided by section 6, article I, of the constitution that:

"All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens."

The title of the bill, omitting the multiplicity of sections of the Code referred to therein, is as follows:

"An Act to repeal section fifty-one hundred twenty-six (5126) and enact a substitute therefor and to amend sections * * *" all relating to statutory salaries and the compensation of state, county, and city officers. Each and every section of the statute sought to be amended by the bill is specifically referred to and designated in the title. Duality of title is asserted by appellant upon the ground that the act deals with the salaries of township assessors, justices of the supreme court, judges of the district court, and numerous other state, county, township, and municipal officers. It is pointed out in this connection that the sections sought to be amended are classified under and comprise a part of various chapters and titles of the Code. The fundamental reasons underlying the provisions of the state constitutions requiring that the title of every act shall embrace but a single subject has been frequently stated and elaborated upon by this court in prior decisions. Davidson Building Co. v. Mulock, 212 Iowa 730, 235 N.W. 45; Chicago, R.I. P.R. Co. v. Streepy, 207 Iowa 851, 224 N.W. 41; State v. Gibson, 189 Iowa 1212, 174 N.W. 34; Clear Lake Co-op. L.S.S. Assn. v. Weir,200 Iowa 1293, 206 N.W. 297. The following succinct statement by Judge Cooley will suffice at this point:

"`It may therefore be assumed as settled that the purpose of these provisions was: First, to prevent hodgepodge or "log-rolling" legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.' 1 Cooley's Constitutional Limitations (8th Ed.) 295, 296." Davidson Building Co. v. Mulock, supra.

The title to the present act is without ambiguity of any kind and it is difficult to perceive how any one could have been misled or deceived thereby as to the subject-matter, purpose, or object of the proposed legislation. The subject, as already appears, was salaries of designated public officers. The sections of the statute relating thereto and which it was proposed to amend were clearly specified and designated in the title. It is true that the various sections of the Code specified relate to and deal with the salaries of many and widely differing officers. Neither the plurality nor diversity of the officers, state, county, township, or municipal, referred to in the bill necessarily suggests a duality of subjects. The object and purpose of the proposal, obviously, was to reduce the salaries of the public officers designated therein. No other purpose is expressed or sought. The motives prompting the proposed legislation are expressed in section 54 of the bill. It is there recited that an emergency existing in the state of Iowa, affecting the public welfare, required that the salaries of the public officials designated in the bill be reduced. It would seem too clear for discussion that the title to the bill is not subject to the challenge that it embraces a plurality of subjects.

We are met at this point, however, with the further insistent contention of appellant that the act is not of uniform operation and for this reason violates section 6, article I, of the constitution of the state of Iowa and also the Fourteenth Amendment to the Constitution of the United States. This contention proceeds upon an obvious misconstruction of the constitutional provision or else a misconception of the nature, object, and purpose of the act. The constitutional provision invoked by appellant applies only to laws of a general nature, laws which affect all citizens or classes. Such laws must be of uniform operation and must not grant privileges or immunities to one or more classes which do not, upon the same terms, equally apply to all citizens. The term "uniformity of operation" contemplates that all laws of a general nature shall be uniform and operate upon all persons in a like situation equally and without discrimination; that is to say, they must be general and uniform in their operation upon all persons in a like situation and this is not affected, necessarily, by the number of persons within the scope of their operation. McAunich v. M. M.R. Co.,20 Iowa 338; Haskel v. City of Burlington, 30 Iowa 232; Iowa Railroad Land Co. v. Soper, 39 Iowa 112; Polk County v. Cope,176 Iowa 19, 157 N.W. 245; Des Moines v. Bolton, 128 Iowa 108, 102 N.W. 1045, 5 Ann. Cas. 906; State of Iowa v. Garbroski, 111 Iowa 496, 82 N.W. 959. 56 L.R.A. 570, 82 Am. St. Rep. 524; Clear Lake Co-op. Ass'n v. Weir, 200 Iowa 1293, 206 N.W. 297; Midwest Mut. Ins. Assn. v. De Hoet, 208 Iowa 49, 222 N.W. 548; State v. Darling, 216 Iowa 553, 246 N.W. 390, 88 A.L.R. 218; Frost v. Corp. Commission (D.C.) 26 F.2d 508.

The act in question is in no sense a law of a general nature but is special in character and applies only to the salaries of certain designated offices or officers and affects such officers in their official capacity and not in their character as citizens. The classifications to which the act is made applicable existed long prior to the enactment of chapter 89. The act is special and limited strictly in its application to designated public offices then existing. It is amendatory in character and, except as the basis upon which the reduction of salaries is predicated, is probably more or less arbitrary. It creates no distinctions or discriminations. It is in its essence applicable only to a designated class or classes. The chapter comprises a large number of sections, each applicable to a designated office or officer. There is no reasonable basis for the contention of appellant that it lacks uniformity of operation within the meaning and purpose of either the Fourteenth Amendment to the Constitution of the United States or of the provision of the state constitution quoted above.

II. We come now to consider what must be deemed as the major proposition relied upon by appellant, which is that the bill was not constitutionally passed by the legislature. The act originated in the Senate. Having duly passed that body, it was messaged to the House of Representatives where it was amended and returned to the Senate. The bill, known throughout its course in both branches of the legislature as Senate File No. 479, as amended, passed the House by the vote of a majority of all the members elected to that branch of the legislature. It was read three times in the Senate and, as amended, read the third time in the House. The yeas and nays were duly recorded in each branch of the legislature upon the final vote and this fact is shown by the journals of the respective bodies. The amendments proposed by the House were rejected by the Senate. The House declined to recede. Thereupon, conference committees were appointed by the Senate and House. The conference resulted in an agreement to approve certain of the amendments proposed in the House. Being duly filed in each of the two houses, the report of the conference committee was finally adopted by a yea and nay vote. The question submitted to the House was in the following form:

"Shall the house adopt the report of the conference committee on Senate File No. 479 and the supplementary report and concur in the amendments as proposed therein?"

The vote was taken on the foregoing question and the yeas and nays recorded on the journal of the House. The same procedure was followed in the Senate.

The constitutional aspects of the question here presented are not new, but possibly the precise question now urged has not been fully dealt with in prior opinions of this court. The question is doubtless precluded by prior recent decisions of this court to which reference will be made presently, but we deem it not improper, because thereof, to consider the question upon the basis of the elaborate briefs and arguments of counsel.

It is provided by section 15 of article III of the constitution of the state of Iowa that "bills may originate in either house, and may be amended, altered, or rejected by the other; and every bill having passed both houses, shall be signed by the Speaker and President of their respective houses"; and by section 17 of the same article that "no bills shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal."

The bill, known as Senate File No. 479, was, as stated, passed to its third reading in both branches of the legislature. A bill is a proposal in prescribed form to one or the other of the branches of a legislative assembly for passage and enactment into law. Bills may originate in either house and are, when presented to the other branch for passage, subject to amendment or rejection thereby.

Many state constitutions require that bills be read three times in each house. Section 17 of article III quoted above does not, in terms, include such requirement. It does require that the question upon final passage shall be taken immediately upon its "last reading." The custom prevailing in the Iowa legislature of having all bills read three times is in harmony with long established parliamentary practice in legislative assemblies. The precise origin of the practice is not definitely known but the custom has long been followed. See Iowa Manual of Legislative Procedure, compiled under the direction of the superintendent of the State Historical Society by authority of the Thirty-seventh General Assembly.

Although not specifically required by constitutional mandate, it may be assumed that the framers of the constitution contemplated that the custom of established parliamentary procedure in the particular involved would continue to be followed by the Iowa legislature. Perhaps it goes further than this. The constitution clearly contemplates more than a single or "last reading" of the bill but makes no specific provision therefor. The bill, as stated, was read three times in each of the respective branches of the legislature and finally adopted by a vote of yeas and nays which was duly recorded in the journals of the respective bodies. The bill, as passed, including the amendment, was not, however, read as a whole. The question before us rests for decision upon the proposition that the amendments proposed in the house and approved by the conference committee were not read in either branch three times, or the bill as amended so read. A bill as originally presented to one or the other of the branches of the legislature is a distinct proposal of a measure for enactment into law. It may be amended, altered, or rejected when sent by the house in which it originated to the other branch of the assembly.

Conference committees of legislative assemblies are also of ancient origin. The first record thereof is in the recorded proceedings of the English Parliament in 1378. Its use as an aid in legislation has continued generally by legislative bodies until the present time, except perhaps it is no longer employed by the English parliament. Luce on Legislative Procedure, p. 400; Law and Practice of Legislative Assemblies by Cushing, p. 336.

No doubt, the rules of the two houses of the Iowa legislature make due provision for the appointment of conference committees when deemed necessary or convenient. The procedure followed in the present instance has always been pursued in this state. There is some diversity of judicial opinion on the subject, but the overwhelming weight of authority holds that the adoption of the report of a conference committee on amendments by a vote of the yeas and nays, without a third reading, meets all of the constitutional requirements. State v. Dillon, 42 Fla. 95, 28 So. 781; People v. Thompson, 2 Cal. Unrep. Cas. 481, 7 P. 142; Board of Com'rs. v. Strait, 36 Colo. 137, 85 P. 178; Johnson v. City of Great Falls, 38 Mont. 369, 99 P. 1059, 16 Ann. Cas. 974; State v. Cronin, 72 Neb. 636, 101 N.W. 325; Browning v. Powers (Mo. Sup.) 38 S.W. 943; Robertson v. People, 20 Colo. 279, 38 P. 326; State v. Ryan, 92 Neb. 636, 139 N.W. 235, Ann. Cas. 1914A, 224; State v. Cox, 105 Neb. 75, 178 N.W. 913; Loomis v. Callahan,196 Wis. 518, 220 N.W. 816; People v. Edmands, 252 Ill. 108, 96 N.E. 914; Mechanics Building Loan Assn. v. Coffman, 110 Ark. 269, 162 S.W. 1090; State v. Corbett, 61 Ark. 226, 32 S.W. 686; Callison v. Brake (C.C.A.) 129 F. 196; Stephens v. Board of Commissioners,79 Kan. 153, 98 P. 790; Brake v. Callison (C.C.) 122 F. 722; School Dist. No. 11 v. Chapman (C.C.A.) 152 F. 887. In a few jurisdictions, a contrary rule prevails: Norman v. Kentucky Board of Managers, 93 Ky. 537, 20 S.W. 901, 18 L.R.A. 556; State v. Boyer, 84 Or. 513, 165 P. 587; Glenn v. Wray, 126 N.C. 730,36 S.E. 167, 169; Norman v. Kentucky Board of Managers of World's Columbian Exposition, 93 Ky. 537, 20 S.W. 901, 18 L.R.A. 556; Claywell v. Board of Com'rs., 173 N.C. 657, 92 S.E. 481; Cohn v. Kingsley, 5 Idaho 416, 49 P. 985, 38 L.R.A. 74.

Such is the history of legislative procedure in relation to the matters referred to and the status of judicial decision in this country.

Passing from the discussion of the question on its merits, we come now to consider what must be deemed the decisive rule in this state. The bill was duly enrolled in both houses, signed by the President of the Senate, the Speaker of the House, and approved by the Governor within the time allowed by the constitution. Thus attested, the enrolled bill becomes the exclusive and conclusive proof of its due and regular passage by the assembly. The rule and the reasons therefor are best expressed by the supreme court of the United States in Marshall Field Co. v. Clark, 143 U.S. 649, 12 S. Ct. 495, 497, 36 L. Ed. 294, as follows:

"And when a bill, thus attested, receives his [the president's] approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable. As the president has no authority to approve a bill not passed by congress, an enrolled act in the custody of the secretary of state, and having the official attestations of the speaker of the house of representatives, of the president of the senate, and of the president of the United States, carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by congress. The respect due to co-equal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution."

The question was fully and elaborately considered and discussed in the case just referred to and in Davidson Building Co. v. Mulock, supra. The same conclusion was also announced in State v. Lynch, 169 Iowa 165, 151 N.W. 81, L.R.A. 1915D, 119, and Miller v. City of Oelwein, 155 Iowa 706, 136 N.W. 1045, and, while a slight departure therefrom is suggested in Dayton v. Pacific Mutual Life Ins. Co., 202 Iowa 753, 210 N.W. 945, such departure was disapproved in the Davidson case. Distinctions sought to be made by counsel in some of the foregoing cases upon the theory that what is said on the point under discussion was dictum is not persuasive. The doctrine, as stated above and approved by this and a majority of courts of other jurisdictions, is, in the view of the writer, a sound, safe, and workable rule. The consequences of a reversal of this rule in any jurisdiction cannot help but work much confusion.

III. One further proposition remains for consideration. It is that the sections of chapter 89 in which the legislature attempted to reduce the salaries of judges of the district and supreme courts is unconstitutional and inseparable from the act as a whole; that, this being true, the whole act must fail. The rule that an act will be declared unconstitutional as a whole when portions thereof, which are inseparable therefrom, violate constitutional provisions is familiar and need not be here restated, but see State v. Executive Council, 207 Iowa 923, 223 N.W. 737, and cases there cited.

Appellant has not such an interest in the provisions of the act relating to the judiciary as entitles him to challenge the constitutionality thereof, unless the act as a whole must be declared invalid because such portions thereof are invalid. The legislature is forbidden by section 9, article V, of the constitution to increase or diminish the salary of judges of the supreme and district courts during the term for which they shall have been elected. Considered strictly according to the language of the sections of the present act dealing with salaries of judges, it is applicable thereto during the term for which such judges were already elected. Whether these provisions should be deemed void or merely inoperative until the terms of the respective judges of the supreme and district courts shall have terminated, the writer expresses no opinion, but see Schaffner v. Shaw, 191 Iowa 1047, 180 N.W. 853; Wilson v. Shaw, 194 Iowa 28, 188 N.W. 940.

The only possible sense in which the sections relating to the judges are inseparable, if unconstitutional, from the remaining sections of the act is that the same was passed in recognition and because of an asserted existing emergency affecting the public welfare. The motive of the legislature is thus clearly expressed. The measure was deemed essential under prevailing conditions. Of course, the legislature could legally have, by separate enactments applicable thereto, reduced the salary of each officer referred to in chapter 89, except judges. The sections of the act are necessarily separable. Each applies to a particular office or officer. The legislature may, for good reasons, have deemed it best, notwithstanding prevailing conditions, not to alter the salary of the governor or of certain minor officers. In such case, the legislature exercises a broad discretion. The act is necessarily separable and obviously does not offend the constitution at this point in the particulars or for the reason urged by counsel. The writer would, for the reasons stated, affirm.