Smith v. Mitchell

72 S.E. 755, 69 W. Va. 481, 1911 W. Va. LEXIS 136

Opinions

BkaNNON, Judge.

Until the enactment of chapter 85 of the Acts of the Legislature of 1911, the council of the town of Point Pleasant had sole and exclusive power to grant license to sell spirituous liquors, without regard to the county court of Mason county; but that act took away this council power by the provision that, “No license to sell at wholesale or retail spirituous liquors, wine, porter, ale, beer or drinks of like nature shall be granted by the council of said town. Such license shall only be granted by the county court in the manner prescribed by law.” Upon the claim that this act is void, Iiomer Smith obtained from the town council a permit to obtain such a license, and armed with this council order he applied to R. E. Mitchell, clerk of the county court, for a certificate of such license; but Mitchell refused to recognize the order of the council, and refused to issue the certificate requested. Thereupon, Smith applied to the Supreme Court for a writ of mandamus to compel Mitchell to issue to him the certificate to obtain such license.

In the argument before this Court of this much contested case two grounds were urged for the contention that the Act of 1911 is null and void, leaving still in force the former statute giving the council sole power to grant such license. One ground is, that the bill was not read in the Senate on three different days, as the Constitution requires; and the second ground is, that the bill never finally passed the Senate so as to become a law.

As to the claim that the bill was not read in the Senate on three different days, the facts are, that a bill called Senate Bill Ho. 99 was introduced into the Senate, and an exactly similar bill called House Bill Ho. 161 was introduced into the House of Delegates. That House Bill 161 was regularly read and passed by the House, and reported to the Senate as passed by the House, is not questioned. Senate Bill 99 was read twice in the Senate. On its second reading the Senate substituted the house bill for the senate bill, and under the name of House Bill Ho. 161 it was ordered to be read a third time, and on February 18th was read a third time and passed with its title. As stated the titles of the two bills were the same, the bodies the same, literally. Eor the purpose of the requirements that a bill shall be read three times, -we may say that these bills are one, because they have the same title and the same enacting language. The purpose of this provision of the Constitution is to inform legislators and the people of legislation proposed by a bill, and to prevent hasty legislation. The two readings of the Senate Bill and the third reading of the substituted House Bill did this, just as effectually as if the house bill had not been substituted for the senate bill, and the senate bill had been retained and read a third time and passed. Shall we give this provision so rigid a construction as to go beyond its purpose and defeat legislation? There is nothing so special in a constitutional provision as to justify this.

Will it be suggested that this was another bill, a substitute, not Senate Bill 99, and that this substitute should have been read three times ? I ivould answer that we can hardly call it a substitute because it is identical in matter with Senate Bill 99. But suppose even that the bills were not so identical; still the substitute bill, if so germane to the original bill as to be a proper substitute, would not have to go back and be re.ad three times. A substitute is an amendment. “When a bill has been read and referred to a committee who have reported a substitute, having the same general principles, it is not necessary to the valid enactment of the substitute that it should be considered an original bill and read three times on the three different days.” 26 Am. & Eng. Ency. L. 540. When a bill is amended it does not call for re-reading. People v. Thompson, 7 Pac. 142; 36 Cyc. 952; State v. Dillon, 42 Fla. 96; Cleveland v. Anderson, 66 Neb. 261. Capito v. Topping, 65 W. Va. 588, written by Judge Poffenbarger, is pointed authority for this. A bill having same title as- act No. 40 of 1894 was introduced in the Senate as S. B. No. 23, read by its title, placed on the calendar for second reading, subsequently taken up upon second reading, read by title, and referred to a committee.

The committee reported its action on Senate Bill No. 23, giving the exact title of the same. The committee reported the bill favorably by substitute. The bill was read by its title. Substitute adopted in lieu of original bill, and became S. B. No. 90. Bill as reported read by title. Subsequently S. B. No. 90 reported by the committee was put on its third reading, and read in full, then passed. Held, that the contention that S. B. No. 90 should have been considered an original bill, and read in the senate three times on different days, once in full, was not well founded. Board v. Fowler, 50 La. Ann. 1358. Take the case of Miller and Gibson v. State, 3 Ohio St. 475. “A bill after being read twice in the senate was committed to a select committee, who reported it back with an amendment, to wit: ‘Strike out all after the enacting clause and insert a new bill.’ The bill as amended passed the senate and house and became a law. The claim was made that the ‘new bill’ bad but two readings in tbe senate.” The court said: “When it appears by the journals that a bill was amended by striking out all after the enacting clause, and inserting a ‘new bill’, so called, it cannot be presumed that the matter inserted was upon a different subject from that stricken out, especially when the matter inserted is consistent with the title borne by the bill before amendment.” The court relied upon a, presumption that the substituted bill was the same as the original, and being so, no three readings were required of the amended bill. In the present case the sameness of the senate and house bills is apparent. The court further said in Miller and Gibson v. State, supra; “But for argument’s sake, let it be admitted that the bill as amended was read but once in the Senate; is the act for that reason void? That, counting two readings before the amendment, and the final reading, the bill was read three times, is conceded, for these readings are shown by the journal, and it is also conceded that, in general, three readings of an amendment are not necessary. But in as much as the amendment in this case is styled in the journal a “New Bill’, it is said that three readings were necessary. Why necessary? The amendment was none the less an amendment because of the name given it. It is not unusual in parliamentary proceedings to amend a bill by striking out all after the enacting clause, and inserting a ‘New Bill’. When the subject or proposition of the bill is thereby wholly changed, it would seem to be proper to read the amended bill three times, and on different dates ; but when there is no such vital alteration three readings are not required.” That case is strong to show that such sameness dispenses with reading over again; strong to show that two readings of the senate bill and one of the bill after substitution of the house bill make up three readings. Nelson v. Haywood, 91 Tenn. 596, is of same effect. “A bill having been passed regularly by both houses was referred upon a difference between the two houses as to certain proposed amendments, to a joint committee of conference. The committee reported as follows: ‘Your committee of conference, to whom was referred S. B'. No. 10, with house amendments, beg leave to report the accompanying bill in lieu of said bill and amendment, in which is embraced substantially all the provisions of both houses. Your committee deem it prudent to propose a bill in lieu as tbe original bill has been much disfigured by amendment, inter-lineations and erasures. Your committee asks that the bill offered be accepted and passed.’ This re-drafted bill of the committee of conference contained fewer sections and annulled .some of the proposed amendments, the committee substituting compromise provisions therefor. The committee’s report was concurred in by both the houses and the bill signed. The bill was not passed after its re-drafting by the committee”.

“Held: The act was constitutionally passed and is a valid law. The committee did not report a new bill. They had authority to make such changes as would reconcile differences between the two houses. It was not necessary that this bill be passed upon three readings after the committee reported.”

I believe it is not, and cannot be, claimed that the bill after passage by the Senate had to go back for concurrence of the House in the substitute, for the reason that the substituted house bill was not variant from, but identical in title and enacting matter with House Bill 161. “An immaterial amendment need not in any way affect the substance. Where a reference to ‘Thompson & Steger’s Code’ was struck out, and the devised Code of Tennessee’ inserted in its place, both being the same book, it was held that there was not any substance and amendment requiring concurrence.” Note 30, 36 Cyc. 956, citing Gaines v. Harrigan, 4 Lea (Tenn.) 608. In our case there was no difference between the two bills save in name and number. Name and number are no part of the real bill, merely designating for convenience, and cease on passage, and do not appear in the published act. Judge PoeeeNBARGBR lays down the rule that no bill can become a law in less than five days. 36 Cyc. 950, says: “A substantial compliance with a constitutional requirement as to the reading of bills is sufficient * * * The requirement that bills be read on different days in each house will not prevent the reading of a bill in one house on the day that it was passed by the other.” A note there found says that “When duplicate bills are introduced in both houses the substitution and final passage of the house bill for the senate bill on its order of third reading does not render the substitute bill obnoxious to the constitutional requisite that bills shall be passed on three different days in the Senate”, citing Archibald v. Clark, 112 Tenn. 522, 82 S. W. 310. It is conceded that- it may be read in one house the same day of its passage by the other. So held in Arkansas. 26 Am. & Eng. Ency. Law, 540, citing Chicot v. Davis, 40 Ark. 200. Does the requirement of three readings on different days in each house necessarily mean three days in one house, and three other days in the other house? May it not intend only that each house must have three daily readings, but the readings may be on the same days in each house, in case of a duplicate bill? When both houses have enacted the same words literally, why may we not say-that both branches have agreed to the same words? The object is to let the members'have notice of the measure by three daily readings. This is accomplished by three readings in each house, though on same days. The houses are distinct for this purpose. All that is required is the assent by the two bodies to the same thing. It has been constant practice in our Legislature to so proceed with duplicate bills. But we do not have to so say in this ease.

Judge PoeeehbAUGER seems to say that our decision would allow a house bill to be read three days in the House, then go to the Senate, and there a substitute be adopted, and it then passed without three daily readings. By no means do we say so. In our case the duplicate bill was read three times in each house. The very same bill was so read. The bill for this purpose is not the mere piece of paper, but it is its contents that must be read. The contents are what is meant by the word iCbilP in this, provision of the Constitution. The duplicate was, under facts above stated, read three times on different days in each house. That is the case which we decide. Thus we come to the conclusion that the three readings required by the Constitution were had.

Next, as to the second ground given for the invalidity of the act, that is, the claim that the bill never became a law for want of final passage by the Senate. As stated above the Senate passed the bill February 18, and ordered its passage by the Senate to be reported to the House, and it was so reported. On February 20 the Senate adopted a motion to reconsider the votes by which it had ordered House Bill 161 to be read a third time and passed. The Senate passed an order requesting the House to return the bill to the Senate; but the House in response to this request, on February 21, refused to return the bill to the Senate, giving as its reasons that the bill had become a law, .and passed beyond its jurisdiction. In response the Senate adopted a resolution insisting that its voté of reconsideration had the effect to undo its vote passing the bill, and insisting that the bill had not become a law, and insisting that it be returned to the Senate. The House did not order it returned to the Senate. On February 24 the Senate appointed a committee to call on the Governor and Secretary of State and request the return, of House Bill 161 to the Senate, and to call on the House of Delegates and its Speaker and request such, return. The committee reported that the Governor informed it that the bill had been delivered to him at 4:30 o’clock P. M. on February 20,'and that he had approved the bill and delivered it to the Secretary of State at 5:10 o’clock P. M. and having so disposed of the bill he had no further control over it. The committee further reported that it had demanded the bill of the Secretary of State, who replied in writing that he had surrendered it to the Keeper of the Polls, and had no further custody or control of it. The committee further reported to the Senate that it had waited upon the Keeper of the Polls, M. M. Neely, clerk of the House (who is ex officio Keeper of the Polls) and informed him of the Senate’s request for, return to it of the bill, and he produced >the bill, stating that he liad that moment received it from the Secretary of State, and stated -that he would ask leave of the Speaker to return it to the Senate. The question whether it should be returned was again submitted to the House and the House referred it to the Judiciary Committee, and it reported that it could not advise the House whether the bill had become a law, and that whether a law or not, its validity could not be affected by retention of the engrossed bill. The House laid the report on the table. The House never ordered the bill returned. On February 20 the Speaker of the House wrote the Governor that the Senate had requested him to return engrossed House Bill No. 161 to the Senate, the Senate having reconsidered its action in passing it. The Governor on same date replied that the bill had been received by him at 4:30 P. M. on that date (20th February) and approved by him at 5:10 P. M. and delivered to the Secretary of State. So, the bill never returned to the Senate. After the Senate passed it, 18th February, it was on that date, by order of the Senate, reported to the House as passed by the Senate, and went to the joint committee of the two houses on Enrolled Bills, charged with duty to compare bills passed with their enrollment, correct errors, and present to the Speakers of the House and President of Senate, and then present them to the Governor for his actions. It seems that the bill was in the hands of this committee on the 18th after its passage by the Senate was reported to the House. Thus, it seems that this bill was passed by the Senate on February 18, reported same back to the House, went to joint committee same date for performance of its functions, was reconsidered by the Senate at 4 o’clock P. M. 20th February, presented to the Governor at 4:30 P. M. same day, approved and delivered to the Secretary of State at 5:10 P. M. same day, and on February 24 went to the Keeper of the Rolls. The question is, what is the effect of the action of the Senate reconsidering its passing House Bill Ho. 161? For Smith it is with confidence pressed upon us that such vote nullified the vote of the Senate passing the bill, and thus the bill wants passage by the Senate, and the bill never became an act, so as to be law. We do not question that a bill must be passed by both houses of the Legislature; but we say that this bill was so passed. This is so unless the vote of the Senate to reconsider did away with the Senate’s passage of the bill. To sustain the view that such vote to reconsider works that result, we are cited to a provision of the Constitution, Art 6, section 24, that “each house shall determine the rules of its proceedings,” and that under it there is a Senate rule saying that “it shall be in order for any member voting with the prevailing side to move a reconsideration of the same within two succeeding business days.” That such motion may be made inside two days, under any circumstances. This rule has for its purpose a limitation of time upon reconsideration. It must be applied in practice conformably to general principles of parliamentary law governing reconsideration. A fundamental principle of that law is, that to enable a legislative body to reconsider a vote passing a bill it must have control and possession of it. If it has performed its office upon the bill, and it has gone from its physical possession and control, it cannot reconsider. It has lost jurisdiction. The case is no longer in court. Heither a legislative body nor a court can act upon a matter not before it. This is fundamental. When the reconsideration in question in this case was voted, the bill had passed the House and Senate,.had been sent back out of the Senate by its order to the house, and was in the files of the House, which refused to return it to the Senate, or in the hands of the committee on ■enrolled bills, without power of return. The Senate had completed its function and ousted itself of jurisdiction. What is the authority as to this? “This right to consider remains so long as the hill remains in the custody of the body proposing to reconsider unless they have some special rule restraining the right to reconsider. The matter is still in fieri while pending before and within control of either house. And it is not an infrequent occurence for one house, which has finally passed a bill and sent it to the other house, to request its return, which being done, the vote on its final passage is reconsidered. There must be a time when the right to reconsider terminates — and the same rule applies in the one case as in the other and that is, when the bill or law has passed from the custody or control of the department or body seeking to reconsider.” People v. Hatch, 19 Ill. 283. In Wolf v. McCaull, 76 Va. 876, a joint resolution recalled a bill then before the Governor, but not acted on by him. The court held this recall void, the return of the bill by the Governor void because without authority, and the act had by operation of law become a law without approval.

I have cited this ease as authority for the proposition that to render reconsideration effective the bill must be yet in the possession of the body, the court saying: “When does the power of control over a bill passed by both houses close and determine ? There must be a time in parliamentary proceedings when the controlling power of the legislative body must come to an end. If the general assembly had the power to recall the bill it must have been for the purpose of reconsideration because no motion to reconsider it is in order unless the paper is before the body in which the motion to reconsider is made. (Jefferson’s-Manual, 93)”. In Allegheny County v. Warfield, 100 Md. 516, 108 Am. St. R. 446, conceding power of Governor to erase his approval, yet it is made dependent on the fact that the bill is yet in his custody. Jefferson’s Manual of Parliamentary Law says, “After a bill, resolution, message, report, amendment or motion upon which a vote was taken shall have gone out of the possession of the Senate” no motion to reconsider can be made. Section 42. I cite People v. McCullough, 210 Ill. 488, 71 N. E. 262, and State v. Whisner, 35 Kansas 271, 10 Pac. 852, for the proposition, that after the Governor has delivered the bill to the Secretary of State he has lost power of recall. Why? The cases say he has no physical possession or control of the document. This is the test in such cases; so it is in our case. The eases arc in principle subject to the same test.

For the proposition that to justify reconsideration by a legislative body it must still have possession of the bill, a brief cites Croker’s Procedure 80, 182; Hunneman v. Grafton, 10 Metc. (Mass.) 454; Reed v. Action, 117 Mass. 348; Bigelow v. Hillman, 37 Me. 52; Estey v. Star, 56 Vt. 690; Marsh v. Scitnate, 153 Mass. 34; Brown v. Winterport, 79 Me. 305.

Great force is attributed in behalf of Smith to the case of State v. Bank, 79 Conn. 141, 64 Atl. 5. The case is widely different from our case, in that respect on which our decision as to this point rests, namely, the continued possession and control of the bill. A bill passed both houses, but a motion to reconsider was made, pending and not disposed of, and by mistake, without authority it was delivered by the clerk to the Secretary of State. The court as its reason said in words that “While the bill was in the possession of the house and on the desk of the Speaker, the house had entertained a motion to reconsider.” In our case the bill had left the Senate by its order, the Senate thus declaring that it had finished consideration of it.

Very clear it is that when a bill has passed both branches of the Legislature, and been approved by the Governor and filed with the Secretary of State, the bill cannot be later reconsidered or recalled by either or both branches, simply because the Constitution says that when so approved it is law. And further after a bill has passed both branches and gone to the Governor for his action it can not be reconsidered or recalled by the Legislature, for the reason that it has ended its function and lost control and possession, the legislative department has acted on it, and it has gone to another department of the government, the executive, for its action, Wolfe v. McCaull, 76 Va. 876; 26 Am. & Eng. Ency. L. 548. The New York case of People v. Devlin, 88 Am. Dec. 377, while the syllabus gives power to recall by the joint action of both branches, the opinion wholly denies the power. Under the last'mentioned principles the reconsideration being abortive, the bill became an act, and no right to recall it by the Senate existed, and the bill became law.

Precedents or instances there are of the federal Senate and House where one body has, on request by another, returned bills or resolutions, just as there have been instances where governors have returned bills presented to them, and the power silently conceded, as stated in 26 Am. & Eng. Ency. L. 548; but such concession would not make law. We have not before us what such bodies may do. We have the dry question of law. whether after the Senate had done with the bill, its vote to reconsider will nullify the passage of the bill, the House not consenting and refusing to return the bill, the Senate never repossessing itself of the bill. We thus do not have the question whether the Senate could have affected the bill, had the House returned it. It had passed both houses. Could one alone nullify its past act of passage demanded by the Constitution, which passed act had taken legal effect by force of the Constitution? The well considered case of People v. Devlin, 88 Am. Dec. 377, and others cited in 26 Am. & Eng. Ency. L. 148, say one branch cannot recall from the governor. Why can one branch, against the will of the other, recall from that other? if it does, it has no effect. We are not dealing with the question of courtesy between the houses or what the House should have done. We know what it did do. It refused return of the bill.

As to “recall” from the Governor. The House never joined in it, nor authorized the Speaker to do so. Where is the Speaker’s authority to do so? The Senate alone made a recall on 24th February. The bill had then been enrolled, signed by the Speaker and President of the Senate, approved by the Governor, filed with the Secretary of State. After all this, after all these proceedings, this Court is asked .to ignore it all, and overthrow the act. We think this Court would be going far, straining its legitimate powers, to do so.

Holding the act valid we refuse the mandamus.

Above I have given the reasons moving the Court in its de- cisión of this case. Some time after writing those reasons I became impressed, speaking for myself, with what was somewhat suggested in oral argument, and with a line of thought furnishing an additional argument or reason supporting that decision. An attorney for Mitchell made the point that the vote of the Senate passing the bill was never actually recalled. He said that when the reconsideration was voted, the next question before the Senate was, “Shall the bill pass”; but that question was never put, that vote never taken, and thus the original vote passing the bill stood. If so, that settles that the act is valid. At any rate be that as it may, we have the fact that the Senate did once vote the passage of the bill; the fact that it did not by actual vote reject the bill after its vote to reconsider; the fact that the bill had before been reported back to the House as passed; the fact that it went to the joint committee and was enrolled and signed by the President of the Senate and Speaker of the House; the fact that it went to the Governor, and was by him approved, and after the executive had finished its part in the enactment, was finally filed in the office of the Secretary of State; the fact that it went to the Keeper of the Rolls, the Clerk of the House; and now after passing through this curriculum or course of enactment the Court is asked, in a collateral proceeding, to overthrow the act. Without asserting that the failure to vote a rejection of the bill left the original vote of passage still good, we do say that a court after such procedure cannot hold the act null and void. And further if this is doubtful, then the rule that before a court can hold an act invalid the question must be clear, is alone enough to deny the mandamus.

If there had been no vote of the Senate passing the bill the case would be different. While some cases say that a court cannot inquire whether a bill was passed by both legislative houses when approved by the Governor, the preponderance of law' is that the judiciary may look to the journals to see whether the constitution has been in this respect complied with; but that is not our case; for the journal of the Senate shows compliance with this requirement, everything regular, the only question being as to the effect of the vote to reconsider. We are asked to enter into details of procedure in the Legislature, to inquire into regularity or irregularity, and pronounce that the vote to reconsider, without further reconsideration, nullifies the Senate’s former action, passing the bill; to pronounce that the action of the law making powers, legislative and executive, is irregular not only, but goes to the extent of nullifying the act. A court cannot usurp this function. It is a well known principle that if a court has jurisdiction mere irregularity or error in the course of procedure does not make its action wholly void. Shall we say that this irregularity avoids this act; that the Legislature having sole jurisdiction has erred, and thus rendered the act void? If a court cannot do this in judicial actions, much less can it review the various steps of a legislature.

After a full discussion of a petition for rehearing this Court refused it. I make this note to add some authority which I have met with today. As to the position taken in the above opinion that the Senate having returned the bill to the House as passed it had lost possession of the bill and could not reconsider. Cushing on the Law and Practice of Legislative Assemblies, section 1274, says that “though a motion for reconsideration may be made and discussed in the absence of a paper to which it relates; yet if decided in the affirmative, it will be wholly ineffectual and inoperative until the paper is in possession of the house. The first step, therefore after vote to reconsider is to send to the other branch for the paper in reference to which the vote to reconsider passes, or otherwise to bring it before the house.” Por myself I do not see why the paper is not necessary on the motion to reconsider. Why? Because the members want to see it, so as to vote intelligently on that motion. Why necessary to have the bill present when reconsideration takes place? In order that the members may read it before voting. Precedents in Congress show that such was the understanding. The House requested the Senate to return a bill, “There being a motion pending to reconsider the vote by which the House passed the same.” The senate complied with the request. In the senate the question was whether a motion to reconsider was in order in as much as the resolution announcing the decision of the senate on the nomination of Isaac Hill had been communicated to the president, and it was unanimously determined that the motion was not in order. The Senate recalled a bill from the House before reconsidering it. Decisions on points of order in the H. S. Senate by Gilfrey 161, 411, 493.

■ • The Senator. I move that the House of Bepresentatives be requested to return to the Senate — (stating the number and title of the bill). In Senate Mr. Ingalls rose to a question of order and stated that a bill which passed the Senate on Thursday last had not been sent to the House, but had been retained by the Secretary for two days, at the request of a senator who desired to enter a motion to reconsider the vote on its passage; and asked the ruling of the chair upon the question whether under the rule it was competent for the Secretary to retain a bill, after its passage by the Senate, at the request of a Senator for the purpose of a motion for reconsideration within the two days allowed for that purpose. The President stated that such had been the uniform usage of the Senate, inasmuch as the rule gives the right within two days after passage; but it submits to the Senate 'whether the practice hereafter shall be in conformity with usage or strictly conform with the rule. The Senate assented. Senator Ingalls was an able parliamentarian. He understood that it was necessary to have the bill in the possession of the Senate for reconsideration, and the whole Senate assented. Thus we have the ruling of that distinguished body. Why keep the bill in the hands of the Senate, if it was not necessary to act on a motion to reconsider? Same book, page 414. The same book, page 161, says: “There are many reasons that make it necessary for one House to request of the other the return of the bill. The following are sample cases”, giving reconsideration as an instance. The Senate may have said in the Hill case that it could vote to reconsider in the absence of the bill; but did not say that it could finally act on it. In the original argument an attorney contended that the vote of the Senate was only one to reconsider; that the next question in order was, “Shall the bill pass ?”; that as no such question was put and no vote token upon it, the original vote of passage was not disturbed. It would seem upon some authorities that when a vote to reconsider is carried it is a withdrawal of the vote of passage, leaving the bill stand as if the body had never voted for its passage. It is not necessary to say how this is; but I find the case of Ashion v. City of Rochester, 60 Hun. 372, holding that without such a vote on the question of the passage of the bill, the original t passage stands. The opinion also holds that a “motion to reconsider” may be entertained if the house has control of the bill, tiras sustaining the proposition that it cannot do so in the absence of the bill.

Writ denied.