Montgomery Beer Bottling Works v. Gaston

126 Ala. 425

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

HARALSON, J.

The only question we need consider on this appeal, according to the view we take of it, is the ■constitutionality of the “Act to amend the revenue laws of Alabama,” approved February 23d, 1899 (Acts 1898-99, p. 164). The other question so elaborately discussed by counsel, of the constitutionality of the Fourteenth subdivision of section 16 of said act, must share the fate of the general enactment, of which it is a part, if that he held to be unconstitutional.

’ The question raised by the plaintiff on this appeal is, that said act of the 23d of February, 1899, was never constitutionally enacted, and is, therefore, void, because, as alleged, the journal of the House of Representatives shows that after the passage of the bill by the House, it was amended by the Senate, and the Senate amendments were not concurred in by the House by a majority of its members taken by yeas and nays, and the names of those voting for and against said amendments were not recorded in the journal, as required by section 22, Art. IV. of tlie Constitution, and that a conference committee of the two houses was appointed, and 'the journal of the House does not show that a report -of that committee was made and adopted by the House by a majority of its members voting for and against its adoption, taken and recorded as required by said section of the Constitution. Just here the contention arises between the. parties as to what constitutes the journal of 'the House,-—the defendant insisting 'that a certain bundle of papers, purporting to be the fiftieth day’s proceedings of the House, which show that on that day said revenue bill was, as contended, constitutionally passed, -constitutes the journal of that day’s proceedings; and the plaintiff, that two bound volumes in the Secretary of State’s office, in which said day’s proceedings purport to be recorded, but in which said -conference report and its adoption by the House as required by the constitution does not appear, constitute the journal. The former shows that the alleged defect in the legislative proceedings, preventing the bill from becoming a law, does' not exist, and the latter, as has been stated, that it does. The fate of -the bill, therefore, must depend upon the -determination -of the question, which of these two,—the bundle of papers or the two volumes,— is the journal of the House. The said papers and the volumes have been certified to this court for inspection, together with all the evidence in the cause, bearing on the question, and are before us in -aid of our judicial knowledge as to what constitutes the journal of the house; the same evidence having been introduced in the court below, in aid of the judicial knowledge of that court.

The said bundle of papers consists of about 106 pages of paper fastened together at the upper left hand corner with -a paper brad. The first page is headed “Fiftieth day’s proceedings, Thursday, Feb’y. 23d, 1899.” The pages are not numbered, and the writing on the different sheets,—some of which are shorter than others, and of different quality of paper,—is in ink and pencil, black and colored, -and in different handwritings, and much of the contents -of the sheets are also in typewriting. It contains many original senate and two -original -executive messages, with a statement in pen or ink of the action of the bouse thereon; also appear rubber stamp memoranda of different transactions of tliat day’s proceedings, and printed slips of the names of the members of the bouse, alphabetically arranged, showing the yea and nay vote on different propositions by pasting on other sheets a list of the names of members after the words “yea” and “nay,” and showing the vote by striking out with pen or pencil, the names on these two' lists, according to the vote of yea or nay of the members, respectively; also original reports and copies of reports of committees pasted on legal cap paper, concluding with the name of the speaker, attested by the clerk.

Among these papers is a sheet of legal cap paper on which is written in pencil, the same words and figures that appear on the margin of the page 839 of the second volume of the two bound books certified to us, and claimed by the plaintiff to be the true journal of the house. These papers do not purport to contain the proceedings of any day, except the last, or fiftieth day, of the session.

The boobs referred to were two large well and substantially bound record books, from 2-¿ to 3-J inches thick, one containing 600 and the other 853 numbered pages of written matter, the volumes being labeled on their backs “Journal of House of Representatives, Session 1898-9, volume 1 and 2.” On the first page of the first volume are written the words “Journal of the House of Representatives;, Session 1898-9. Montgomery, Ala., Nov. 15th, 1898the calling of the house to order, the swearing of the members, and the usual and customary proceedings of the 'organization of the house; each page contains a part of the proceedings of the 'house through each day, and the proceedings of the 25th day of the session, as appears on the last page of Vol. 1 are continued on the first page of Vol. 2. The proceedings of each day from the first to the fiftieth 'day each, inclusive, follow in regular chronological order, and at the end of the fiftieth day’s proceedings in said second volume is the statement that the session adjourned sine die, and is signed by Charles E. Waller, Speaker of the House of Representatives, and is attested by Massey Wilson, Clerk, If is shown that on page 839 of tlie second of these volumes the interpolation complained of,—which will he set out in full in the report of the cause, and may also’be found in the report of the case of The State v. Wilson, 123 Ala. 259—was made on the margin of said page, after the 2d of May, 1899, about two months after the final adjournment of the General Assembly, and after said volumes had been placed or filed by the Clerk in the office of the Secretary of State.

Charles E. Wader, the Speaker, testified for plaintiff, that he 'had examined the second volume of the book above referred to; that his signature as speaker appeared at the end of the writing in this volume; that the two volumes referred to are the journal of the House of Eepre-sentatives for the session of 198-99, and that the proceeding’s transcribed into said books were signed by him a day or two after the adjournment of the session; that he signed the books, as the original journal of the House of Eepresentatives; that the Clerk of the House kept on a board reports of committees and other papers, and from that (the reports and papers on this board) the journal was made, and that journal was just like a clerk would write what had taken place; that the Clerk kept a file, already referred to, on which were the reports of committees and other papers, and he signed that also, to go to the printer; that the journal of the House is correct history of what takes placa in the House, and “ has no business with the original reports on it, and does not contain the original papers.” Said Waller also testified that the last day’s proceedings of the House were never read therein; that he had no knowledge that these books were ever in-the House; that the clerk never kept but one journal, and no other journal was ever presented to the House as its journal in any shape or form except the bound volumes, and that the papers referred to which the Clerk kept on a frame, were the data from which he had to write up the journal.

Massey Wilson, the Clerk, testified for defendant, that he kept a journal of the proceedings of the House on the fiftieth day; that the first thing he did with this -—the fiftieth day’s proceedings (ip manuscript sheets) —‘was to turn it over to a clerk to be copied into volume 2 of the book testified about by others in the cause, and that he then sent it to the State printer at Jacksonville, Fla. This is the batch of papers above described, and claimed by defendant to be the journal of the House. Witness explained these papers by stating—to use his own language—that “as a step was taken iii the House, a note was made of it, and after the House adjourned, I got it out and would write it up, and in ■doing that, if I could get some of the notes- and use them by pasting them on the back of sheets, I would do it, and sometimes I would use & little rubber stamp when I could. These papers contain substantially or ■actually the same thing as appears on the marginal entry on page 839 of the book.- These papers were made out first and the book copied from it;-the papers were •signed a very few days after we made them up. * * * I put the clerk to making up the book (copying it) about ten or twelve days after the legislature first convened; the House had ten or twelve days’ proceedings when I first begun copying that book. This whole book (referring to the book which witnesses for plain-tilf testified about) is a transcription of the original papers, —the papers that I made up daily, and which papers I sent to the State printer. 1 have seen these books (referring to the books introduced in evidence by plaintiff') ; that is any signature at the end of that book (Yol. 2). After it was signed I left the books (Yols. 1 and 2) in the office of the •Secretary of State. * * * I never deposited with the Secretary of State the journal which I kept. The balance of this (referring to the papers kept by this witness, and introduced in evidence by defendant) is now in tlie hands of the printer in Jacksonville, Fla. * * * I wrote the printer, after this suit begun, to 'send me by express, these papers, (referring to the papers which this witness testified he kept as the journal of the fiftieth day’s proceedings) ; the printer wrote in reply that he had forwarded them, and when I got here this morning I received the papers from the Secretary of State, but they reached the Secretary of State last night. * * * I. never gave the printer in Florida or any one else any directions to send these papers, or any part of them, hack to me, until a week ago, hut I directed the printer to preserve them, every sheet of them. It (the hatch of papers) is the journal I sent the public printer. I get pay for copying; 1 was paid $4Ü0. I know how the marginal entry on page 839 of the second volume of the books introduced by • the plaintiff came there; I directed it to be made shortly after the convening of the last extra session of the legislature . ”

Section 13 of Art. IV. of the present constitution contains the provision that “each House [of the General Assembly] shall keep a journal of its proceedings, and cause the same to be published immediately after its adjournment, excepting such parts as, in its judgment, 'may require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one-tenth of the members present, be (tutored on the journals. Any member of either house shall have liberty to dissent from, or protest against, any act or resolution which he may think injurious to the public or an individual, and have his reasons for his dissent entered on, the journals.’-’ The words “entered on the journals,” where they occur above, we have italicized for more convenient reference, as will be the case further on in this opinion, where we italicize in any quotation the words of the 'constitution or statutes of the State. In like manner, section 21, of the same article, requires the names of the members voting on the final passage of a bill to “he entered on the journals;’’ and section 22, requiring that no amendment to bills by one House shall be concurred in by the other, except by a vote of the majority thereof, taken by yeas and nays, and the names of those voting for and against, recorded upon the journals. Section 27 requires that the fact of the signing of bills and joint resolutions passed by the General Assembly “shall be entered on the journal.” Section 13 of Art. V., in respect to the veto of the Governor, requires that his objections to the measure vetoed shall be returned to that House in which it originated, “who shall enter the objections at large upon the journals;” and again, in the same section, in requiring, in ease the hill is passed oyer the veto, that “the names of the members voting for or against the bill shall he entered upon the journals of each House, respeetweli/H

The statutory provisions in reference to the journals of the two Houses are as follows: See. 2221 of Code: “At the close of each session the Secretary of the Senate and the Clerk of the House of Representatives, and Secretary of State must select all the papers belonging to the General 'Assembly, except such as relate to unfinished business, and deposit them in the'office of the Secretary of State.”

Section 2222: “Tjie engrossed copies of all laws and joint resolutions passed by the General'Assembly, must he preserved by the 'Chairman of the enrolling committee, and deposited in the office of the Secretary of State.”

Section 2223: “The Secretary of the Senate, and Clerk of the House of Representatives must, within ten days after the adjournment of each session, assort all the papers and documents of their respective houses, relating to the unfinished business of the session, and arrange them as follows:”—’(designating the class of papers).

Section 2240: “Within forty days after the adjournment of any session of the General Assembly the Secretary of the Senate and the Clerk of the House of Representatives must file and arrange the papers of their respective houses in the office of the Secretary of State, and ’Cojjy and deliver to the public printer the journals of their respective house, with proper indexes thereto, and for such service when performed they shall receive respectively the 'sum of four hundred dollars.”

Section 1974 : It is the duty of the Secretary of State (amongst other things prescribed) “to keep the State seal, tlie original statutes and public records of the State, the records and papers belonging to the General Assembly, keeping the papers of each House separate.”

The foregoing are our constitutional and statutory provisions touching the question of the kind of journal the Houses of the Legislature are required to keep.

We have decisions bearing on the question, to which reference must be made. It seems no doubt ever before arose, in the legislature or professional mind as to what constitutes the journal, That one was required by law to be kept, and what it should contain, all agree, and when, in judicial utterances, the journal has been referred to, it ivas done, as if everywhere and generally it was known what was meant by the term journal. Whatever else it may mean, it certainly does refer to the record which the Legislature keeps and is required to keep of its proceedings, and like all other records required by law to he kept, it imports absolute verity.—The State v. Buckley, 54 Ala. 613. It is one, and not two or duplicate journals or records that must be kept; and it cannot be that both the batch of papers and the two bound volumes,—placed before us from the Secretary of State’s office,—together constitute the journal of the House. The one or the other is the journal required by law to be kept.-State v. Wilson, 123 Ala. 259. In that case, involving in another form, the matter here complained of in respect to the alleged interpolation into the journal of unauthorized matter, .we said: “It cannot be doubted, we think, and it is indeed quite obvious, that the Clerk’s official connection with the original journal —except the duty of copying it for the printer—ceases upon his delivering it to the Secretary of State for safe keeping after it has been signed by the speaker and himself. From and after that time, he has no custody of it, no control 'over it, no right to its possession except for the spedfic purpose above referred to, no power to alter it nor to prevent others from altering it, and is under no duty to keep it safely or to preserve it from mutilation or interpolation.” This extract from that case is indulged to show that the journal, whatever it may be, i's the owe record required by law to be filed with the Secretary of State as the journal, as well as to show that it cannot thereafter be amended or added to by the Clerk. All our decisions refer to this memorial in the Secretary of State’s office, as the record to which courts will look in ascertaining at last whether a statute has legal existence. In Moody v. The State, 48 Ala. 115, it was held that the journals of the two Houses of the General Assembly are public records, of which the courts will take judicial notice, and if it appears from them that an act was not passed according to the forms of the 'Constitution, it will be held not to have the force of law. In that case it appears from the opinion that the court examined the journal of the Senate at pages 458, 524, and House journal at page 5G0, in aid of "their judicial knowledge. In that examination of the journals they gave the place in the Senate journal, containing the matter with which they had to do, as at page 458, showing that the journal was in the form of a record, with numbered pages. Bee also Moog v. Randolph, 77 Ala. 599; Jones v. Hutchinson, 43 Ala. 721. In Wilson v. Duncan, 114 Ala. 668, it appears, the court examined the legislative record on file in the office of the Secretary of State, called the journal, to correct an error in the published acts. See also Ex parte Howard-Harrison Iron Co., 119 Ala. 484. In State v. Wilson, 123 Ala. 259, supra, where the integrity of the journal was assailed and sought to be corrected, in reference to this same interpolation upon its margin, the alleged change was referred to in Volume 2, p. 839, and this 'book was also referred to, throughout, as the journal, though it must be added, the question of what constituted the journal was not raised in that case.

For an inspection of the legislative records in the office of the Secretary of State, in aid of our judicial knowledge, we ascertain that in each of the cases above referred to, when the pages of the journals were given by the court, the number of these pages with an error in one instance which may be presumed to be typographical, are correctly stated as appear in well bound volumes similar to the ones Jjefore us for inspection in this case.

Mr. Cushing in his Law & Practice of Legislative Assemblies, section 415, says: “The official record of wliait is ‘done and past’ in a legislative assembly is called the Journal. It is so called because the proceedings are entered therein, in chronological order, as they occur from day to day; the business of each day forming the matter of a complete record by itself; hence the record is frequently spoken of in the plural as the journals.” * * * “In the two houses of parliament the clerks take minutes of all the proceedings, orders and judgments of their respective houses as they occur, and make short entries of them in their minutes * * * From these, and from the paper's on file, it is the duty of the clerks afterwards to prepare the journals, in which entries are made at greater length, and with the forms more distinctly pointed out. * * * All persons may have access to the journals of the two houses in the same manner as to the records of courts.” § 41G. The same author furthermore says, section 422: “A record or minute of the proceedings of a deliberative assembly of any kind is so essential to the convenient and efficient exercise of its functions that it must be considered as a necessary incident to the existence of every body. But the importance of having and preserving such a record of the votes and acts of a legislative body in a form accessible to the public, has been considered so great in this country as to be required by express constitutional provision.” Still again he says, section 327: “The clerk and his assistant attend at the table and take notes of the orders and proceedings; from which the votes, as they are called, are made up and printed each day, agreeably to the order of the house, ‘under the direction of the speaker.’ At the end of the session, it is the business of the clerk to see that the journal of the session is properly prepared, and fairly transcribed, from the minute books, the printed votes and the 'original votes as have been laid before the house.” “The phrase ‘to keep a journal’ seems borrowed from the technical language, as the keeping of a journal corresponds to the practice of mercantile book keeping.” § 423.

In the case of The State v. Smith, 44 Ohio St. Rep. 348, where the question was as to whether an act had been constitutionally adopted, the court touching the question as to whether resort might be had to parol evidence, to impeach the validity of its adoption, said: “Counsel have exhibited unusual industry in looking up the various cases upon the question; and, out of a multitude of citations, no one is found in which any ■court has assumed to go beyond the proceedings of the legislature, as recorded in _the journals required to be kept in eich of its branches, on the question whether a law lias ’been adopted. And if reasons for this limitation upon judicial inquiry in such matters have not generally been stated, it doubtless arises from the fact that they are apparent. Imperative reasons of public policy require that the authentication of laws should rest upon public ’memorials . of the most permanent character. They should be public, because all are required to conform to them; they should be permanent, that rights acquired today upon the faith of what has been declared to be law shall not be destroyed tomorrow, or at some remote period of time, by facts resting only in the memory of individuals.”

As to the journals of the General Assembly required by the laws of this State to be kept, it may be said that the constitution and statutes as plainly imply as if they had contained the express language that these journals shall be in permanent, substantial book form, written or printed in ink. Thereby their greater accessibility and convenience to their contents by all the public can be promoted, their keeping and handling rendered safer and easier, and their permanent preservation the better secured. All these considerations enter into the matter of keeping the journals, as required by law. Common and judicial knowledge alike assure us, that such has been the manner of making up and keeping these journals during; the history of the State. Snell journals as these are found and preserved in the archives of the State, for the examination of courts, lawyers and all interested parties. No other form of preserving the original ■ legislative history of the State would subserve the constitutional and legislative requirements. Words are to be construed in their popular sense,—the plain sense in which the people generally understand them, unless- it plainly appear from the waiting in which they appear that they were intended to be employed in s-ome other sense.—Harrison v. The State, 102 Ala. 170. That the word journal jn popular use, and according to popular understanding, means such books as are kept for a journal of -legislative proceedings in 'the Secretary of State’s -office, and not to a file of memorandum sheets from Which it was made up, is too clear for dispute. This is in keeping, -also, as we have, seen, with similar requirements in respect to the journals of legislative bodies elsewhere, with no more definite directions as to their keeping than ours, and is ■consonant with authority, public policy and 'common sense. What claims, let it be asked, has the batch of papers before us to be declared the journal of the House? It is as unsubstantial, as wanting in durability, convenience and qualities as a journal of legislative proceedings as can well be devised. As has been said, its pages are not numbered, and it is difficult of handling and examination, is not in proper documentary shape even for filing, and as the evidence clearly establishes, Avas never gotten up or considered as a final journal, such as the law directs to be kept. If so, Avhy did the Clerk send it off to the public printer at Jacksonville, Fla., as a transcript of the journal, required by laAV to be made, from which to print the volume of legislative proceedings, called the printed journal? Section 2240 of the Code required him Avithin 40 days after the adjournment of the session, to copy and deliver to the public printer, a copy of the journal of the House, and for such service, he was entitled to receive $400. The clerk swore he sent this batch of papers and similar batches of the other days’ proceedings of the session to the printer in Florida without any instructions to return them, and not until the purposes of this suit required it Avas this particular batch ordered back by him. The other batches, as he shows, are still in Florida, and he never deposited these as the journal Avith the Secretary of State. He says also, he received for these papers the compensation allowed by laAV for a copy of the journal for the printer. If this was the original, Avbat business had the printer in Florida with it, and if not a mere copy of the original, Iioav could the Clerk treat it as a copy and get pay for making it as such under the statute? It clearly appears from his OAvn evidence, as avoII as from the Speaker’s, that he got it up to answer the purpose of a copy and to save himself the labor of making a transcript of the original journal as contained in these two volumes before us. ne sent it off as a copy and got pay for it as such, and so far as appears, Avith out intending reflection on the Clerk, it was never thought of as the legislative journal, until the necessity of this suit suggested it.

It may be asked again, bow can such parts of the legislative proceedings as are required to be “entered on the journals,” to be “entered at large on the journals,” to be “recorded upon the journals,” find a place in such a batch of papers as this? To record means to recite, repeat, and in the sense used in the constitution, to transcribe something upon the journal. To record and to enter upon are used synonymously in the constitution, ■and it is past the reasonable comprehension of the judicial mind to understand 'how a mass of paper tacked together as these are, and for the purposes intended, can furnish a convenient, permanent and safe receptacle for entering and recording the legislative proceedings required under our law. The tackin'* together of such papers is not the entry or recording upon the journals spoken of in the constitution.

Aided and instructed by the evidence before us, we declare as of our judicial knowledge that these books before us constitute the true and legal journal of the House of Representatives for the session of 1898-99, and said batch of paper's cannot in any sense be considered as such. The journal shows that said conference report on the Senate amendments to the' revenue bill were never concurred in by the House in the manner required by the constitution to make it a legal enactment, and for that reason the entire act must be held to be void and of no effect.

The writing on the margin of this journal at page 839 of what purports to be the conference report of the two Houses and its adoption by the House, placed there under the instructions of the Clerk, however honestly done and with the best of motives, which we do not question, was an unlawful interpolation of the journal, ■and is without any legal effect to give vitality to the enactment of said revenue bill.—State v. Wilson, supra.

It follows, the 'court erred in refusing to give the first ■six (“barges requested by plaintiff, and in giving the clrarges numbered 1 and 2 requested by defendant; and that i't did not err in giving the charges numbered 1 and 2 requested by plaintiff. The judgment will be affirmed on the cross-appeal of J. B. Gaston as judge, etc., and oil tlie original appoa.l, tlio jn’dgineni of 'the'court below will be reversed and blie raiffie remanded.

Affirmed oil cross appeal.

Be versed and remanded on original appeal.