I agree to the dissenting opinion of the Chief Justice, and in addition wish to add the following:
As stated in the dissenting opinion of Judge WOOD and myself in Easley v. Patterson, 142 Ark., at p. 71, one of the meanings in law given to the verb "exhibit" by Webster is to file of record. Hence, as there stated, it seems to me that when the framers of the Constitution provided that the evidence of the publication of the notice required in case of local bills should be exhibited in the General Assembly before such act shall be passed meant that it should be filed of record there. Then, if any proof of publication of the notice appeared on file as a part of the records of the Legislature, the courts would not inquire into the sufficiency of the notice, but would indulge the conclusive presumption that the Legislature had found that it had been amended so as to conform to the Constitution.
On the other hand, if no notice of publication of the notice was filed of record in the Legislature, this would be proof in the courts that the evidence of the notice having been published had not been exhibited to the Legislature and that the mandate of the Constitution had not been complied with. How, it is evident that the majority opinion in this, as well as our cases bearing on the subject, proceeded upon the theory that the clause requiring that the evidence of such notice having been published shall be exhibited in the General Assembly addressed itself to the Legislature and not to the courts. So, when the special act was passed, the proof of publication of the notice had served its purpose by giving the required information to the Legislature; and, although it might be a part of the records of the Legislature, it had served its purpose, and it would be no longer necessary to preserve it as a part of the legislative records. Hence, if it was destroyed, there would be nothing left upon which a court might act either by way of judicial knowledge or by evidence aliunde. *Page 131
It will be noted that the Booe case in 141 Ark. 140 is not opposed to this view. There it was held that the court could take judicial notice of the date of the proclamation of the Governor under the Constitution for an extra session, and also of the date of the approval of the act passed at the special session. When this was done, it was conclusively established that the 30 days' notice by publication required under the Constitution could not have been given. Thus it will be seen that the question of whether the proof of publication became a part of the records of the Legislature was not decided at all. As we have already seen, however, it appears, by necessary implication at least, under the majority opinion of Easley v. Patterson, 142 Ark. 52, that the clause requiring the notice of publication to be exhibited in the General Assembly was for the benefit of the Legislature, and, when it had served its purpose, need not be preserved. If it was to become a permanent part of the records, it would be open to inspection by the courts at any time, just as the legislative journals, and the court could at any time take judicial knowledge of their state, condition or contents. If the court will not take judicial knowledge of the contents of the proof of publication of notice exhibited or filed of record under a mandatory provision of the Constitution, it seems inconsistent to make such a holding in case of statutes like this. It will be noticed that 3370 prohibits the Governor from granting any application for a pardon until the certificate of publication has been filed in his office. So if the mandatory provision requiring evidence of notice in the case of special acts to be exhibited before the Legislature could pass the bill addressed itself to the Legislature and not to the courts, with equal reason it should be held that the statute in question prohibiting the Governor from acting upon an application for a pardon before the certificate of notice of publication was filed in his office was for his benefit and could not be inquired into by the courts. The most extreme view that can be taken of the Booe case is that where the court ascertained *Page 132 by evidence of which it may take judicial knowledge that the notice required in case of special acts could not have been given, it will declare the act void. Now, it is evident that, even under the view of the majority opinion, it cannot be said that it is conclusively established that the act in question was not complied with in the matter of publication of the application for pardon. Now, it is quite evident that the Lieutenant Governor stands in the shoes of the Governor when the latter is absent from the State. It may be that the publication required by the statute was had before the Governor left the State, and that the certificate thereof was filed in his office after he left the State, and while the Lieutenant Governor was in office. The latter might have deemed that the files with reference to the pardon were of no further use after the pardon was granted and have destroyed them. In such a case our judicial notice would not avail us anything. There would be nothing there. Again I repeat, if the mere requirement of filing means to be preserved for judicial review by the courts, the rule in case of local bills should be changed so that the notice required in case of local bills to be exhibited or filed of record should be preserved as permanent files to be reviewed by the courts in determining whether the mandatory provision of the Constitution had been complied with. It will be observed that there is nothing in the pardon statute requiring the Governor to write in the pardon that the statute with regard to the publication of the application had been complied with. There is no statutory form of pardon where the publication is given. It is only in cases where the notice is dispensed with that there is any special requirement about the form, and the requirement then is merely that the Governor state on the face of the certificate thereof that the pardon was granted without application thereof by any paid representative or attorney of the person pardoned.
The Constitution having conferred the absolute power upon the Governor to grant pardons, neither the *Page 133 Legislature nor the courts can enforce restraints in its exercise. Because the Governor has the absolute power under the Constitution, its evasion or abuse is not a matter for the courts, but for the people. It follows that the whole statute under consideration is addressed to the judgment and conscience of the Governor, and he is to say conclusively, as he passes upon each application for pardon, whether legal notice has been given. Even if the evidence of the notice was intended to be preserved when filed of record, it is for the purpose of informing the people whether the Governor has regarded the duty imposed upon him under the statute, and not for the purpose of enabling the courts to review his action. In short, neither the courts nor the Legislature is capable of controlling the exercise of the pardoning power, which has been exclusively and unconditionally conferred upon the Governor, and they cannot assume to do so without putting themselves in opposition to the fundamental principles of the Constitution and the construction heretofore placed upon it by the Governors and others interested in enforcing its provisions.
SMITH, J., (on rehearing). It is insisted in one of the briefs filed in support of the petition for rehearing that the act under review was not properly passed, for the reason that the bill, not having been approved by the Governor was not properly attested by the Secretary of
The following notation is indorsed on the original bill as the same appears in the office of the Secretary of State: "This bill having remained with the Governor five days (Sundays excepted), and the General Assembly being in session, it has become a law this April 20, 1903." This notation was not signed by the Secretary of State.
By 4971, C. M. Digest, it is provided that "every bill which shall have passed both houses of the General Assembly, and shall not be returned by the Governor within five days, having thereby become a law, shall be authenticated by the Governor causing the fact to *Page 134 be certified thereon by the Secretary of State, in the following form: `This bill having remained with the Governor five days, Sunday excepted, and, the General Assembly being in session, it has become a law this ______ day of ____________ D. B. G. Secretary of State.'"
It appears, however, that the bill was duly enrolled, and the enrolled bill was presented to the Governor. The rules of the General Assembly provided for the enrollment of bills and the presentation of the enrolled, and not the original, bill to the Governor for his consideration and approval, and the enrolled bill was presented to the Governor, and upon the bill as enrolled appears the notation required by the section of the statute set out above, and the certificate signed by the Secretary of State appears on the bill as enrolled. This was sufficient.
Moreover, it is provided by art. 6, 15, of the Constitution, that "if any bill shall not be returned by the Governor within five days, Sundays excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment."
It is thus stated when, according to the mandate of the Constitution, a bill shall become a law. It is not within the power of the Legislature to add to or to take from this mandate. The omission of the Secretary of State to make the indorsement set out above could not therefore prevent a bill from becoming a law, where the Constitution, in stating when a bill shall be a law, does not contain the requirements that the notation be made.
The proper passage of the act by the General Assembly is also questioned in one of the briefs filed in support of the motion for rehearing, but we have *Page 135 examined the journals of both houses and find that the act was properly passed in both the Senate, where the bill originated, and in the House.
The petition for rehearing is overruled.