I dissent. I think the learned trial judge was correct in upholding Chapter 199, Laws of 1937.
It should be remembered that it was stipulated and the court found: That when the bill was originally introduced in the house as House Bill No. 38, the enacting clause read: "Be it enacted by the People of the State of Montana;" that it was amended in committee of the whole in the house and before its passage on third reading to read, "Be it Enacted by the Legislative Assembly of the State of Montana." In this manner, and without any further amendment of the enacting clause, the bill passed through both houses, carrying the exact enacting clause provided for in the Constitution. After the bill had been passed by the legislative assembly, a copy was made for presentation to the presiding officers of the two houses for signature, and in copying the bill someone, either inadvertently or intentionally but without authority, altered the enacting clause by substituting the word "people" for the words "legislative assembly." This was done on the first page of the copy of the bill. Whether this alteration was made before or after the presiding officers of the two houses had signed the bill it was impossible to determine. There is thus no justification for the statement in the majority opinion to the effect that "in the course of the bill through the legislature" the enacting clause was changed. The change took place after the bill had been passed in both houses of the legislative assembly.
The crux of the controversy here is whether it was or is permissible to resort to the legislative journals to ascertain the foregoing facts, or whether the courts must take the enrolled bill as signed by the presiding officers of the two houses and approved by the Governor as conclusive.
Whether the validity of a statute, certified, approved, enrolled and deposited with the Secretary of State can be impeached by resorting to the journals of the legislature is a subject upon which the courts have divided. Some courts hold that an authenticated, approved, and enrolled statute imports absolute *Page 63 verity and is conclusive that the Act was passed in a constitutional manner; others take the view that this presumption is not conclusive but may be overcome by resorting to the legislative journals. Cases supporting each of these views are listed in 25 R.C.L. 894 et seq., and in 59 C.J. 623 et seq.
The reason for not going behind the enrolled bill is stated in 25 R.C.L. 896, as follows: "It has been declared that the rule against going behind the enrolled bill is required by the respect due to a coequal and independent department of the government, and it would be an inquisition into the conduct of the members of the legislature, a very delicate power, the frequent exercise of which must lead to endless confusion in the administration of the law." Or, as was stated in Kilgore v. Magee, 85 Pa. 401, quoted with approval in State ex rel. Reed v. Jones, 6 Wn. 452,34 P. 201, 208, 23 L.R.A. 340: "If every law could be contested in the courts on the ground of informality in its enactment, the floodgate of litigation would be opened so widely, society would be deluged in the flow."
This court has spoken on that subject in the following cases:State ex rel. Bray v. Long, 21 Mont. 26, 52 P. 645,Durfee v. Harper, 22 Mont. 354, 56 P. 582, Palatine Ins.Co. v. Northern P. R. Co., 34 Mont. 268, 85 P. 1032, 9 Ann. Cas. 579, Johnson v. City of Great Falls, 38 Mont. 369,99 P. 1059, 16 Ann. Cas. 974, State ex rel. Gregg v.Erickson, 39 Mont. 280, 102 P. 336, Barth v. Pock,51 Mont. 418, 155 P. 282, State ex rel. Woodward v. Moulton,57 Mont. 414, 189 P. 59, Martien v. Porter, 68 Mont. 450,219 P. 817, and State ex rel. McTaggart v. Middleton,94 Mont. 607, 28 P.2d 188. The result of these cases is that this court has held either by way of dictum or otherwise that it will not go behind the enrolled bill to procure evidence upon which to condemn a legislative Act or to change its operative provisions as disclosed by the enrolled bill, except that it will resort to the legislative journals for the one purpose of determining whether the aye and no vote had been entered in the journals pursuant to the command of the Constitution. *Page 64
Counsel for the defendants argue with much plausibility, and their argument finds support in many cases — perhaps the numerical weight of authority supports their contention — that the courts have a right, in a proceeding to impeach a legislative Act to resort to the journals to see whether any and all constitutional mandates have been complied with. That contention requires no consideration here. Resort to the legislative journals here is not to impeach, but to sustain, legislative action. Resort thereto is not for the purpose of changing the operative provisions of the Act. Here the enrolled bill on its face discloses at most an irregularity in the matter of the enacting clause.
Our duty, where an Act is assailed on constitutional grounds, is to uphold, if possible. We indulge every presumption that the members of the legislature have acted within the Constitution. This presumption of constitutionality reaches not only the subject matter, but applies equally to the procedural requirements in the enactment of laws. (59 C.J. 622, note 39.)
Where, as here, the suggestion of invalidity appears upon the face of the enrolled bill, we would be sacrificing substance for form and doing an injustice to the legislative assembly were we to shut our eyes to the undeniable fact, as disclosed by the legislative journals, that the bill carried the constitutional enacting clause throughout its legislative journey through both houses.
Reasons relied upon by courts which prevent reference to the journals to impeach an Act of the legislature, do not apply in a case where resort to the journals is had for the purpose of sustaining legislative Acts. The journals are made admissible by statute to prove the proceedings of the legislative assembly. (Subd. 2, sec. 10568, Rev. Codes.) To deny their admissibility here to uphold the hands of the legislature would be a gross perversion of the rule against resort to the journals out of respect to a coordinate department of government. While there seems to be a dearth of decisions bearing directly upon this question, yet there are those which tend to sustain this conclusion. (Compare New York Long Island Bridge *Page 65 Co. v. Smith, 148 N.Y. 540, 42 N.E. 1088, and Rumsey v.New York N.E.R. Co., 130 N.Y. 88, 28 N.E. 763.) But plaintiff contends, and the majority opinion holds, that if we are permitted to resort to the journals to establish the fact that the bill carried the proper constitutional enacting clause when it received the consideration of the two houses, it will not save the law, for then it would fall because the Act that was passed by the legislature was never presented to the Governor.
The case of Katerndahl v. Daugherty, 30 Idaho, 356,164 P. 1017, is relied upon in the majority opinion; but there an amendment made by the senate and agreed to by the house was omitted from the bill. The bill as presented to the Governor omitted this amendment which was a part of the operative provisions of the bill. That case was correctly decided but has nothing to do with this case.
It is, of course, necessary for a bill passed by the legislature to be presented to the Governor before it becomes a law. (Sec. 12, Art. VII of the Constitution; and see CharlestonNat. Bank v. Fox, 119 W. Va. 438, 194 S.E. 4.) Here there is no question but that the bill with all of its provisions was signed by the presiding officers of the two houses and presented to the Governor. The only difference between the bill as passed by the legislature and as authenticated and presented to the Governor was the substitution of the word "people" for the words "legislative assembly," in the enacting clause.
Section 27, Article V of the Constitution provides: "The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the legislative assembly immediately after their titles have been publicly read, and the fact of signing shall be at once entered upon the journal."
Under this section, the presiding officer of each house simply signs the bill after the title has been publicly read. It is not incumbent upon them to examine the enacting clause. They are entitled to presume from the reading of the title that the bill they sign has been properly prepared and that it is the bill passed by the legislative assembly. Also, under section *Page 66 12, Article VII, it is provided in substance that a bill passed by the legislative assembly shall be presented to the Governor before it becomes a law. But that which the Governor approves or disapproves is the operative provisions of the law. The bill as passed by the legislative assembly, as to its operative provisions, was presented to the Governor. The enacting clause is no part of the essence or operative provisions of a bill, but simply denotes the authority by which it is enacted. The purpose of an enacting clause was well stated by the supreme court of Tennessee, in the case of State ex rel. Gouge v. Burrow,119 Tenn. 376, 104 S.W. 526, 529, 14 Ann. Cas. 809, as follows: "The purpose of provisions of this character is that all statutes may bear upon their faces a declaration of the sovereign authority by which they are enacted and declared to be the law, and to promote and preserve uniformity in legislation. Such clauses also import a command of obedience and clothe the statute with a certain dignity, believed in all times to command respect and aid in the enforcement of laws. These are the sole purposes of an enacting clause. It is not of the essence of the law, adds nothing to its meaning, and furnishes no aid in its construction."
The enacting clause has served its constitutional purpose by being affixed to the bill in its journey through the two houses of the legislative assembly. It serves no purpose thereafter. The discrepancy shown here between the enacting clause of the bill as passed by the legislative assembly and as presented to the Governor, I think does not warrant us in holding that the bill passed by the legislative assembly was never presented to the Governor. Had the enacting clause been "Be it enacted by the people of the State of Montana acting through the Legislative Assembly," I have no doubt that the enacting clause would have been sufficient.
In the state of Kentucky the Constitution (sec. 62) provides that the style of all laws shall be, "Be it enacted by the general assembly of the Commonwealth of Kentucky." A law was passed with the enacting clause reading, "Be it enacted by the Legislature of the state of Kentucky." In that state *Page 67 constitutional provisions are construed as mandatory, but the court upheld the Act in Louisville Trust Co. v. Morgan,180 Ky. 609, 203 S.W. 555, 558, 7 A.L.R. 396, and said: "The Act here in question has an enacting clause, but it is an imperfect one in the respect that it does not contain the precise words that it is specified in the Constitution an enacting clause should contain, but the defect is in form and not in substance, and the departure from the precise phraseology of the Constitution is neither misleading nor deceptive because the words `Legislature' and `General Assembly' are commonly used interchangeably, as are the words `commonwealth' and `state,' in various sections of the Constitution, in many legislative enactments as well as in court opinions, and there could be no misunderstanding on the part of any person arising from the use of the words employed in this enacting clause. (Commonwealth v. Sherman, 85 Ky. 686,4 S.W. 790, 9 Ky. Law Rep. 218.) Under these circumstances, to hold void, for the reason suggested, an otherwise valid legislative enactment, would be sacrificing substance for mere technical form, and giving to mandatory constitutional directions a narrow, if not an absurd, meaning and effect. No court of last resort has held more consistently and firmly than has our court to the doctrine of mandatory construction of constitutional provisions, but we have as consistently refused to overthrow legislative enactments for frivolous and purely technical reasons."
In Tennessee the constitutional provisions are mandatory. There it is provided that enacting clauses shall read, "Be it enacted by the General Assembly of the State of Tennessee." (Art. II, sec. 20.) An Act was upheld where the enacting clause was, "Be it enacted by the General Assembly of Tennessee." (State exrel. Gouge v. Burrow, supra.) In sustaining the Act the court said: "Can it, then, be said that the apparent omission of the three words, `the state of,' which the human mind involuntarily and with absolute certainty supplies in reading the enacting clause of the statute, when all the purposes of the constitutional provisions are accomplished, can have the effect to vitiate a law otherwise duly enacted by the *Page 68 General Assembly and approved by the Governor of the state? We think not. To hold that it did would be to sacrifice substance to the myth of noncompliance with a form in a matter where every purpose of the framers of the organic law had been fully effectuated. Such an absurd result was not intended and cannot be allowed. While some courts of last resort have held, as we do, that the constitutional provision here invoked is mandatory, yet no case has been called to our attention where a statute has been held void for a failure to comply with that provision, when the enacting clause used necessarily and conclusively expressed the same meaning and had the same effect, although not literally in the form used."
In the case of Smith v. Jennings, 67 S.C. 324,45 S.E. 821, 822, the mandatory provision of the Constitution (art. III, sec. 16) required that the style of all laws shall be, "Be it enacted by the General Assembly of the State of South Carolina." An Act was upheld where the enacting clause read, "Be it resolved by the General Assembly of the state of South Carolina." The court stated: "We hold, while the constitutional provision as to form of enacting clause is mandatory, that a substantial compliance with the mandate will be sufficient. We cannot bring our mind to hold that an absolutely literal compliance with the form prescribed is essential to valid legislation."
In Louisiana the constitutional provision relating to the enacting clause of bills is held to be directory merely, and hence decisions of that court would have no persuasive force here, but I desire nevertheless to call attention to the case ofCity of Shreveport v. Dale, 149 La. 439, 89 So. 408. There the Constitution required that the style of all laws shall be, "Be it enacted by the General Assembly of the State of Louisiana." (Const. 1913, Art. XII.) An Act was sustained where the enacting clause was, "Be it enacted." The court said that the defect consisted, not in the total absence of an enacting clause, but that the situation presented was "that of a curtailed enacting clause, which has omitted words readily supplied by the attending circumstances." So here, the bill was authenticated by the signatures of the presiding officers of the two *Page 69 houses, a circumstance that would not have existed had the Act been initiated directly by the people. That circumstance makes it conclusive that the Act was passed by the people "in legislative assembly," and those words can be readily supplied in the enacting clause without changing its substance or meaning.
I think the law in question is not invalid by reason of the fact that, when presented to and signed by the Governor, it did not carry the exact constitutional clause. I reach this conclusion the more readily since, as here, the bill throughout its legislative journey carried the exact constitutional enacting clause, and since the error crept into the enrolled bill through mistake, inadvertence or design of some unauthorized person.
To hold this Act invalid, which throughout its journey in both houses had the accurate constitutional clause, and which, as to its operative provisions, had the appropriate sanction of both houses and the approval of the Governor in identical form, would be to place a bounty on carelessness or to permit the intentional act of some irresponsible person to nullify the Act of the legislative assembly. If this slight change in the enacting clause makes the bill presented to the Governor a different bill from that passed by the legislative assembly, then certainly the change of one word in the body of the Act would entail the same consequences. The majority opinion in effect places the veto power in the hands of an irresponsible employee of the legislative assembly who, through carelessness or design, can overthrow a legislative Act by changing one word in the bill prepared and presented to the Governor for his signature, though the changed word would not affect in the slightest the meaning of the Act.
This is not a case where "the letter killeth, but the spirit giveth life." (II Corinthians 3:6.) Here the strict letter of the Constitution was complied with in the legislative assembly, and there was at least substantial compliance therewith thereafter. Both the letter and the spirit of the Constitution give life to Chapter 199, Laws of 1937. *Page 70
I think the judgment of the trial court is correct and should be affirmed.