Helena Water Co. v. Helena

McCULLOCH, C. J. This action was instituted by the city of Helena attacking the validity of act No. 571 of the General Assembly of 1919 (regular session), creating the Arkansas Corporation Commission, and defining its duties, and abolishing the Railroad Commission and transferring its powers and duties to said Arkansas Corporation Commission. There are two points of attack involved in the action: (1) That the statute was not legally enacted by the two houses of the General Assembly, in that the same bill was not voted on by the two houses; and (2) that it is not within the power of the General Assembly to abolish the Railroad Commission or to transfer its powers and duties to another commission. The bill for the enactment of the statute originated in the Senate as “Bill No. 133” and on second reading seventeen amendments were offered, fifteen of which, according to the journal entries, were adopted, and the bill as thus amended was ordered engrossed. The engrossing committee reported the bill on February 24, 1919, as properly engrossed, but the engrossed bill which we find on file in the office of the Secretary of State does not contain two of the amendments which, according to the recitals of the journal, has been adopted. One of these was an amendment to section 7 of the bill adding a provision, in substance, that the commission was empowered, when deemed proper, to require the filing of an additional bond by a corporation whose schedule of increased ra(es for public' service has been temporarily suspended by the commission. The other amendment was to section 31 of the bill providing that the Railroad Commission should be abolished on January 1, 1921, and perform all the specified duties of the Arkansas Corporation Commission until that date, instead of the original provision of the bill to the effect that the Railroad Commission should be abolished on April 1, 1919, and its powers and duties then transferred to the new commission. The journal of the Senate does not affirmatively show that the Senate at any time receded from either of those two amendments, and it recites the passage of the bill by the Senate February 25, 1919, on yea and nay vote duly recorded. The House journal recites the receipt of the bill on February 25, the reading of it the first and second times February 28, on suspension of the rules, and the third reading and final passage on March 7,1919. Nothing appears on the journal of the House concerning any amendments. The bill as enrolled by the proper committee of the Senate and signed by the presiding officers of the two houses and by the Governor, does not contain those two amendments. (1) It is settled by an unbroken line of decisions of this court that “where an act was duly signed by the Governor, deposited with the Secretary of State and published as a law, it will be presumed that every requirement was complied with in its passage. Glidewell v. Martin, 51 Ark. 559; Mechanics- Building & Loan Association v. Coffman, 110 Ark; 269; Perry v. State, 139 Ark. 227. (2) This presumption is not, however, a conclusive one, and the courts, in determining the validity of a statute, may look to the journals and other records of the Legislature to ascertain whether or not the constitutional requirements with respect to the passage of bills have been observed. Chicot County v. Davies, 40 Ark. 200; Webster v. Little Roch, 44 Ark. 536; Rogers v. State, 72 Ark. 565; Butler v. Kavanaugh, 103 Ark. 109; Mechanics Building & Loan Association v. Coffman, supra. (3) Mere silence of the legislative records concerning the successive steps in the passage of a bill, except as to matters of which the Constitution requires a record on the journals, is not sufficient to overcome the presumption of regularity in the passage of a bill arising from the enrolled copy which has been signed by the Governor and deposited with the Secretary of State. Smithee v. Garth, 33 Ark. 17; Harrington v. White, 131 Ark. 291; Perry v. State, supra. And evidence outside of the record is not admissible to overcome that presumption. State v. Dorsey County, 28 Ark. 378; State Fair Association v. Hodges, 120 Ark. 131; Greene County v. Clay County, 135 Ark. 301. The question now under consideration was, we think, definitely settled against the contention of the plaintiff, in the recent case of Perry v. State, supra, where the records of the passage and enrollment of the statute were not materially different from the facts of the instant case. In that case the bill for the statute under consideration originated, as in the present case, in the Senate, and the journal showed an amendement which was duly engrossed by the committee and reported back. The only difference between the facts of the two eases is that in the Perry case the committee engrossed the amendment into a copy of the original bill and the endorsement of the secretary of the Senate showing the final passage of the bill was on the original bill, whereas in the instant case the committee engrossed into the original bill the fifteen amendments now found in the enrolled statute — omitting the two not shown in the enrolled statute — and the endorsement of the secretary showing passage is on the back of the original bill as so engrossed. In discussing the question in that case we said: “It does not appear affirmatively that the bill, as engrossed, was read a third time and passed. The endorsement appears on the original bill and not on an engrossed bill. After being engrossed, it was within the province and power of the Senate to have ordered the bill placed back on its second reading for amendment and to have receded from the amendment engrossed into the bill, or to have stricken the amendment from the bill, and, should such course have been taken, it would not have been necessary to its validity to have entered these steps concerning the amendment on'the journal. The silence of the record in this regard would not conflict with the presumption that such course was pursued by the Senate. The silence of a legislative journal, on matters not required to be entered on the journal, can not conflict with the presumption of the regularity of the passage of a bill. It is only in matters where the journal does speak, or where it is required to speak, that it could conflict with such presumption. * * * The journals in the instant case only go so far as to show that the amendment was adopted and engrossed in the bill. It does not affirmatively appear that the engrossed bill passed, or that the Senate did not recede from the amendment. Under the rule announced in the cases referred to, the court must indulge the presumption that the Senate did recede from the amendment, and, for that reason, the 'amendment adopted in the Senate did not appear in the enrolled bill.” (4) So, in adhering to the rule announced in the case just cited, and in applying it to the present case, we must say that the presumption arising from the enrolled statute is not overcome by the recitals of the Senate journal that the two amendments in question were adopted, but on the contrary, we must indulge the presumption that the Senate receded from those amendments before the bill was finally passed. Indeed, the omission of those amendments from the engrossed bill as it now appears in the office of the Secretary of State, and its acceptance by the Senate as thus engrossed, raised the presumption that those amendments were withdrawn or receded from before the bill went to the engrossing committee. (5) The next question with which we have to deal is whether or not the Legislature exceeded its powers in attempting to abolish the Railroad Commission or to transfer its powers to the newly created Corporation Commission. The people of the State adopted, in the year 1898, an amendment to the Constitution which reads as follows: “The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and excessive charges by railroads, canals and turnpike companies for transporting freight and passengers, and shall provide for enforcing such laws by adequate penalties and forfeitures, and shall provide for the-creation of such offices and commissions and vest in them such authority as shall be necessary to carry into effect the powers hereby conferred. ” (Amend. No. 2 to Const.) The argument in this case is that the amendment to the Constitution restricts the powers of any office or commission created thereunder- to those therein enumerated, viz., to the regulation of “excessive charges by railroads, canals and turnpike companies ’ ’ and that it is beyond the authority of the Legislature to impose any further duties on -any offices or commissions created for that purpose. It will be observed that the Constitution does not specify by name the office or commission to be created. It primarily provides for the correction of abuses, unjust discriminations and excessive charges by transportation companies and authorizes the creation of “such offices and commissions” and the investment in them of “such authority as shall be necessary to carry into effect” that provision. It constituted a command to the law makers to carry out the provision to create such offices or commissions as might be found necessary. It is a grant, not a limitation of power, and the rule of exclusion of those things not expressed does not apply. It is, in other words, the power to correct abuses by transportation corporations, which is conferred by the Constitution, and not the creation of any particular offices or commissions, and the Legislature could, in the first instance, have created the present commission, and conferred on it the enumerated powers and others. The fact the Legislature first created a commission under the name of Railroad Commission did not exhaust its powers in that respect, and the power to create a commission under another name, with the authority enumerated and more, still existed. We have decided that section 9, article 19, of the Constitution prohibiting the creation of permanent offices was directory to the law makers, so far as concerned a determination that the creation of a temporary office was necessary and that the legislative decision that the office created was temporary and not permanent was conclusive on the courts. Greer v. Merchants & Mechanics Bank, 114 Ark. 212. It may be that the people adopted Amendment No. 2 under the belief that the constitutional provision referred to above is mandatory and that it was deemed necessary to grant express authority for the creation of offices or a commission to carry out the provisions of the amendment. Even if that be the case, it does not warrant the interpretation of the language of the amendment that the powers of the commission created were to be restricted to those enumerated. The conclusion of the majority of the court is, therefore, that the attack on the statute is unfounded. The decree of the chancery court is reversed, and the cause is dismissed. WOOD, J., dissents.