Arkansas State Fair Ass'n v. Hodges

178 S.W. 936, 120 Ark. 131, 1915 Ark. LEXIS 11

• Court: Supreme Court of Arkansas
• Decided: July 12, 1915
• Status: Published

Opinions

Smith, J.

The appellant filed its petition for mandamus in the Pulaski Circuit Court whereby it sought to compel appellee, the Secretary of State, to publish among the acts of the Legislature of the State of Arkansas, House Bill No. 258, commonly known as the State Fair Bill, alleging that said act had been duly passed by the General Assembly at its biennial session in 1915 and had been approved by the Governor of Arkansas. Appellant alleged a special interest in the bill. The petition alleged that appellee had refused to publish said act after demand upon him, giving as his reason that the Governor of Arkansas had withheld his approval from said act and ¡had vetoed it within the constitutional limit of time.

The petition further alleged that an enrolled copy of said act, endorsed by the presiding officers of the House and' Senate, was presented to the Governor on Tuesday, March 2, 1915, at 4:30 o’clock p. m. That on Monday, March 8, in the forenoon, the Governor prepared a veto message, setting out his reasons for withholding his approval of said act, but afterward, and before communicating said message to the House in which said bill originated, and at 4 o ’clock of said day, the Governor reconsidered his determination to veto said bill and affixed his signature thereto with the intent and for the purpose of approving the same in the manner provided by the Constitution, in order to make said bill effective as a law. That after so signing and approving the bill, a discussion ensued in the Governor’s office with reference to the propriety of the action he had just taken, as a result of which he attempted to reconsider his action in approving the bill, which he manifested by writing in front of the word “approved” the prefix “dis,” thus indicating Ms purpose to cancel and annul Ms previous action in approving and signing said bill. That thereupon a number of persons interested in the enactment of the.law .intervened with the Governor and importuned him to revoke his action in thus 'cancelling his approval and signing of the bill aforesaid. That thereupon the Governor still being in possession of the enrolled act, struck out the syllable “dis,” which he had previously added thereto, thus leaving the signature previously attached to the bill in the form of an unconditional approval of the act. That'the Governor thereupon delivered the bill to Ms private secretary with directions to lodge same in the office of the .Secretary of State and to notify by usual message the House of Representatives of his action in thus approving the bill. That for .some minutes after the Governor had thus finally approved the act and given directions for its transmission to the office of the Secretary of State and notification to the House, the persons then assembled in the Governor’s office exchanged mutual congratulations between themselves and the Governor and entered upon a 'discussion of the personnel, of the commission provided for in said act, after which they dispersed. That immediately thereafter the Governor dispatched a messenger to Ms .secretary,-requesting that the bill be returned to him without being delivered to the Secretary of State, and also directed his secretary to withhold notice of his approval thereof from the House of Representatives. That the enrolled and approved bill was accordingly redelivered to the .Governor, who took the same in his personal possession; that on the night of said Monday, March 8, 1915, at 9 o’clock the Governor returned said 'bill to the House of Representatives then in session, together with a statement of his objections thereto; that he had in the meantime reinserted the syllable “'dis” before the word “approved” on the enrolled bill and had likewise inserted by way of a caret the words “and vetoed” after the word “approved;” that upon receipt of this message by the House and the return of the enrolled bill with the several endorsements indicated, a point of order was raised and sustained to the effect that the bill had become a law by reason of the failure of the Governor to return same at an earlier date, and thereafter no further action was taken by the House in connection with said bill, but the same was accordingly delivered by the clerk of said House to the Secretary of State, who now has the same in his personal custody and possession.

That upon the affixing of his signature to the enrolled bill for the purpose and with the intent of approving the same, he (the Governor) exhausted his power to deal further with the same, as the act had then become a valid and enforcible statute of the State of Arkansas, and the return of said bill to the House of Representatives, together with his pretended veto message at the hour, aforesaid, were wholly ineffective and void and the refusal of the defendant to include said statute in the acts of the General Assembly is not justified by said pretended veto.

There was a prayer for a writ of mandamus requiring the Secretary of State to publish the said act among the published acts of the session of the General Assembly of 1915.

Appellee answered the complaint on the 8th day of April, 1915, admitting his duty to publish and certify the laws passed by the General Assembly; admitting that the General Assembly at its biennial meeting passed House Bill No. 258, as set out in the complaint; that he refused and now refuses to certify to the correctness thereof for the purpose of having same published, and that said refusal was made for the reason that the bill had never been approved by the Governor but had been vetoed by him.

Appellee in his answer denied the statement of fact with reference to the 'circumstances attending the disapproval and veto of said bill, but admitted the receipt by the Governor on -March 2 at 4:20 p. m. of the enrolled copy of said bill, and alleged that on Saturday, March 6, 1915, the Governor, having decided to disapprove and veto said bill, prepared and executed a message addressed to the House of Representatives, giving his reasons for withholding his approval, and that later, on March 8, this message was duly transmitted to the House of Representatives, then in session, together with said bill. The answer denies that at 4 o’clock on Monday, March 9, he reconsidered his determination to veto said bill and alleged that at no time did he signify his intention to reconsider or retract his veto. That about 4 o ’clock in the afternoon of March 8, the enrolled bill, then being in the possession of the Governor, he, with his own hand, wrote immediately above the line as entered on said bill, left by the enrolling clerk for the signature of the Governor the syllable “dis” which immediately preceded the word “approved;” said word “approved” having been placed on said bill by the enrolling clerk of said House, and immediately following said word “approved” the Governor wrote the following: “And vetoed March 8, 1915, at 4 o’clock p. m.,” leaving the endorsement, “disapproved and vetoed March 8, 1915, at 4 o’clock p. m.” That after this endorsement was made by the Governor he signed his name on the line left by the clerk for that purpose, under which were the words, “Governor of the .State of Arkansas,” written by the enrolling clerk. That in so signing said bill he intended thereby to disapprove and veto the same, and at no time afterward did he reconsider or retract his act in vetoing said measure.

That after 4 o’clock p. m. on said day the Governor ran 'his pen through the syllable “dis” and the word “and'” in the endorsement sc that said endorsement then appeared “approved, vetoed, March 8, 1915, at 4 o’clock p. m.” That at few minutes later the Governor restored the syllable “dis” and the word “and” to said endorsement, so that it finally appeared “disapproved and vetoed March 8, 1915, at 4 o’clock p. m.,” in which form said endorsement now appears. That upon these facts said House bill was vetoed.

The answer then alleges that the bill was unconstitutional in any event, but that allegation has been abandoned and is not now discussed by either party to this litigation.

The court below made among others the following findings of fact:

“4. That shortly after said hour of 4 o’clock p. m. on said 8th day of March, 1915, certain friends of the Governor, having importuned him to sign the same for the purpose of approval, he erased from said enrolled bill the prefix ‘dis’ before the word ‘approved’ and the word ‘and’ before the word ‘vetoed,’ leaving his signature endorsed on said bill as the same had been previously thereto attached by him; that after having stricken from the bill the endorsement previously made on said enrolled bill the words aforesaid, he handed the same to Mr. .Stewart, his private secretary, with directions to him, the said secretary, to ‘report’ the same; that thereupon the .secretary took into his possession the said bill and left the Governor’s office for the purpose of reporting the same in compliance with directions given to him by the Governor; that at the time the Governor delivered said enrolled bill with his signature written below the words ‘approved’ ‘vetoed,’ to his said secretary and told him to report the same, he intended to subsequently recall the said bill, but no such intention on the part of the Governor was. made known to the said secretary, nor any one else present at the time the said bill was so delivered with said directions to report the same.

“5. That under the rules, regulations and practice in the Governor’s office, a direction by the Governor to his secretary to ‘report’ a bill in manner and form as herein indicated, meant that the said secretary should notify the House in which the bill originated that the Governor had approved the same, and a further direction to the said private secretary to lodge the enrolled bill with the Secretary of State as one of the completely enacted laws of the State of Arkansas; that it was the purpose of said private secretary in pursuance of the directions so given to Mm by the Governor to so report said House Bill No. 258 to the House of Representatives as having been signed, and to subsequently lodge the bill with the Secretary of State as one of the statutes completely enacted by the General Assembly.

“b. • That within a few minutes after the Governor had so delivered said bill to his said secretary with the direction to ‘report’ the same, and while the said secretary was preparing the necessary document to be presented to the House of Representatives, the Governor caused a direction to be delivered to the said secretary to return the said bill to Mm, the said Governor, and thereby revoked the previous direction given to said secretary to ‘report’ the said bill as a completely enacted statute. In accordance with this latter direction from the Governor, the said secretary delivered said enrolled bill, with the endorsements thereon as the same existed at the time the bill was delivered to Mm to the Governor.

“That thereafter, namely, at 9:10 p. m. on said Tuesday, the 8th day of March, 1915, the Governor, having reinserted before the word ‘approved’ as the same appeared on said enrolled bill the prefix ‘dis’ and the word ‘and’ before the word ‘vetoed,’ permitting his signature to remain thereon as the same was shown at the time the said bill was delivered to the said private secretary, aforesaid, the Governor caused the said bill to be returned to the House of Representatives, together with a statement of his objections to the enactment thereof as a law of the .State of Arkansas; that the said bill was not thereafter repassed by the said House of Representatives in the manner provided by the Constitution as in a case where a Governor shall return a bill without Ms approval.”

Having made these findings of fact the court declared the law of the case to be as follows:

“That the said House Bill No. 258 was not signed by the Governor for the purpose and with the intent of giving his approval thereto as a valid statute of the State of Arkansas, and the defendant does not, therefore, rest under any duty to include the same in the statutes to be copied for the public printer for publication. ’ ’

The petition for mandamus was dismissed, and this appeal has been duly prosecuted from that order.

(1) The case of Hodges v. Keel, 108 Ark. 184, is authority for the institution of a suit of this character. A question had there arisen as to whether a certain bill which provided for the creation of a levee district had been approved by the Governor, and because of this controversy the Secretary of State refused to cause the act to be published as required by statute. The plaintiffs in that suit were property owners within the proposed district, and instituted a proceeding to compel the Secretary of State to perform his duties in that respect. The circuit court awarded a writ of peremptory mandamus as prayed, and the Secretary of State appealed to this court. It was there held that the plaintiffs had the right to maintain that suit,, it being shown that they had a special interest in the publication of the act in question. So here it is shown that appellants also have a ¡special interest in this bill which entitles them to maintain this suit.

(2) At the trial in the court below the Governor of the State, together with a number of other witnesses, testified in regard to the circumstances under which certain erasures found upon the bill were made. There was evidence which tended to support the allegations of the complaint ; but we do not set this evidence out for the reason that in the opinion of a majority of the' court such evidence is not admissible.

It is said in the brief that the instant case owes its presence here to the decision of this court in the case of Powell v. Hays, 83 Ark. 448, and that under the opinion in that case parol proof is admissible in the determination of the question whether or not the chief executive had first approved a bill before the ¡subsequently vetoed it. We do not agree with counsel in this ¡contention. It was said in this case of Powell v. Hays that the parties had joined issue as to the law governing a state of facts over which there was no dispute, and the court did not there pass upon the competency of the evidence offered, and in the opinion on rehearing it was said that the decision was placed on the record evidence 'as well as on the admitted facts in the pleadings, and as we construe the opinion in that case it was not decided that parol evidence, which contradicts the record, could he considered for that purpose.

No such issue was presented in Powell v. Hays. The oral testimony there considered was introduced without objection, and the whole opinion shows that the court considered it merely ¡because it was in the record without objection and ¡because it did not conflict, ¡but was in harmony, with the record evidence. As showing conclusively that the court in Powell v. Hays did not hold that oral testimony was competent to overturn the record, we quote the following: “Hence it is unnecessary to pass on the competency of the evidence offered — a question upon which the authorities are divided, ’ ’ etc. Therefore, it is a total misapprehension of Powell v. Hays to construe it as authority for the introduction of oral proof to contradict the record evidence of the enactment of a law. In the instant case-objection was made from the beginning to the introduction of such testimony. The issue is squarely raised and we unhesitatingly declare the law to be that oral testimony is not competent to impeach the record evidence of the enactment or non-enactment of a law.

It is not contemplated under the Constitution of this State that the existence or non-existence of a law should depend upon either the recollection or the veracity of witnesses, and, in order that the existence of a law may not rest upon such uncertain foundation, the Constitution provides that a record shall be kept of each material step in the enactment of a bill into a law, and further provides for the custody of such law and for the preservation of the records which determine its existence.

Section 15 of article 6 of the Constitution provides that, “Every bill which shall have passed both Houses of the General Assembly shall ¡be presented to the Governor; if he approve it he .shall sign it, hut if he shall not approve it, he shall return it with 'his objections, to the house in which it originated, which house shall enter the objections at large upon their journal and proceed to reconsider it. * * * ”

In the case of Powell v. Hays, supra, it was said that the veto message of the Governor was a part of the record to be considered by the court in passing upon the question there involved, and the court there said that the facts recited in the pleadings conformed to the records of the General Assembly and that there was no conflict whatever between the pleadings in the case, the records of the General Assembly and the testimony of the distinguished witnesses who testified in that case. But it was not there said that either the testimony of these distinguished witnesses, or the recitals in the pleadings, should control, or would have controlled, had they conflicted with the recitals contained in the record which had been made in conformity to the requirements of the Constitution and laws of this State evidencing the enactment of a bill into a law.

In treating the veto proclamation of the Governor as a part of the record in the case it was there said:

“Mr. Greenleaf says that public documents, such as executive proclamations, are admissible to prove pertinent facts when the statement is made therein by the person whose duty it is to ¡make it and the subject-matter belong to his province or came within his official cognizance and observations. 1 Greenleaf on Evidence, § 491 (16 ed.).

“Therefore, the recitals of the Governor’s proclamation which are pertinent to the issue, made within his province, and which state facts; within his official cognizance, must be taken as record evidence prima facie at least proving the facts recited.”

The veto proclamation in the Powell v. Hays case, which was prepared by Acting Governor Pindall, very candidly recited the fact to be that upon his accession to office he found that the bill in question had been previously approved by bis predecessor, and under this state of tbe record tbe court held that tbe power of the chief executive to pass upon the bill pending before him for his consideration had been exercised and that when the Governor had approved the bill and had signed it in attestation of 'his approval it became a law and could not subsequently be vetoed. It appeared from the bill itself in that case that it had been approved by Acting Governor Pindall’s predecessor.

For the proclamation of Governor Pindall by which he attempted to veto the bill recites: ‘ ‘ This bill I found in the possession of the Governor’s office when I assumed tbe duties of Governor, and that. it has already been signed by my predecessor in office.”

The legislative record shows that tbe bill in question was not approved ¡but was vetoed, and therefore we do not undertake to review and pass upon the questions of fact about which the Governor and other witnesses testified upon the occasion of his writing his name and the words which appear upon tbe bill. The endorsements now on the bill show that it was ‘ ‘disapproved and vetoed March 8, 1915, at 4 o’clock p. m.” The entries upon the journal of the House of Representatives show that on March 8, 1915, the Governor returned the bill to the House of Representatives, Which was “the house in which it originated,” with a message showing his objections thereto, and this message was entered at large upon the journal of the House.

Looking only to those records which the Constitution provided should be made and kept for tbe purpose of determining questions like tbe one involved in the instant case, we conclude that the bill was not approved, but that it was vetoed and did not become a law. Tbe judgment of the circuit court is, therefore, affirmed.