Prior to our recent decision in Oregon Business Research,Inc. v. Farrell, 176 Or. 532, 159 P.2d 822, this court had in but two cases held that an enrolled act filed in the office of the secretary of state could be successfully impeached by entries in the legislative journals. These cases are Currie v. SouthernPacific Co., 21 Or. 566, 28 P. 884, and State ex rel v. Boyer,84 Or. 513, 165 P. 587. In each of them the judgment was based on the affirmative evidence of the legislative journal that the measure in question had failed to receive the *Page 629 requisite constitutional majority upon its final passage. In the Currie case the court said:
"But when the journals show upon their face that said bill did not receive the requisite vote upon its final passage, and for that reason did not pass, it is difficult to see how the official signatures could give it the force and effect of law." (Italics added).
Even though the holding was thus expressly limited, Mr. Justice ROBERT S. BEAN, concurred "with some hesitation" and Mr. Justice LORD "expressed no opinion but reserved his judgment". It is true that in the Boyer case the vote in the house was upon the question of concurring in the senate amendment. But that was the last action upon the bill taken by the house, and it was treated by the court as the vote upon final passage.
We have no such state of facts here, but a situation identical with that in McKinnon v. Cotner, 30 Or. 588, 49 P. 956, in which "the journals show that in its progress through the legislature an amendment was adopted which is not included in the enrolled act", 30 Or. 592. The two cases are, therefore, indistinguishable.
The only distinction between Oregon Business and Tax Research,Inc. v. Farrell on the one hand, and McKinnon v. Cotner and the instant case on the other, is that in the former an amendment which had been rejected appeared in the enrolled bill, while, in the latter two, amendments which had been adopted were not included in the enrolled bill. While it is somewhat difficult for me to perceive that this distinction is a satisfactory basis for a difference in results, I think that the court did not intend to overrule McKinnon *Page 630 v. Cotner, in its most recent decision, and I agree, for the reasons stated in the opinion of Mr. Justice BAILEY, that the rule of that case should not be extended. I therefore concur in the decision now announced.