(dissenting). I am of the opinion that the statute involved in this controversy was not enacted in accordance with the mandatory provisions of the Constitution and, therefore, must record my dissent from the view of the majority in holding the statute valid.
The Constitution provides (article 5, section 21), that “No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the persons voting for and against the same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor.”
It will be observed from the language of this provision of the Constitution, that it not only requires the yeas and nays to be taken on final passage, of a bill, but it makes the entry upon the journal the sole evidence thereof. The requirement that the vote be entered on the journal necessarily implies that the journal entries shall be the sole evidence, otherwise the requirement could not be treated as mandatory. That this provision is manda-, tory has been settled so far as a decision of this court can do so. Smithee v. Garth, 33 Ark. 17. In that case the court said:
“Manifestly the object of recording the yeas and nays is not to show that a quorum of the members of the house is present, or that a majority votes for the bill. The journal may show that there was a call of the house before the final vote on the passage of a bill was taken, and that a quorum was present, and indeed all the members present, and the journal may also state that a majority voted for the bill; yet if the yeas and nays be not entered on the journal, the requirement of the Constitution is not complied with, and the bill does not become a law.”
It seems to me that if that he a correct statement of the purpose and effect of our constitutional provision, it necessarily follows that the journal entries can not be patched up or aided by evidence aliwnde to show that the record entry related to the final passage of ,the bill instead of to the adoption of amendments. Unless the face of the journal shows that the.vote was taken upon the final passage of the bill, this provision of the Constitution is not complied with and evidence of the fact can not be supplied aliunde. In other words, the journal, in order to comply with the constitutional requirement, must not only show the vote taken by yeas and nays, but it must show that that vote was upon the final passage of the bill.
In the case above cited the court quoted with approval from a decision- of the Supreme Sourt of Alabama in Walker v. Griffith, 60 Ala. 361, where it was said:
“When the Constitution requires that a particular thing shall be necessary to the validity of an act of legislation, and that the journal must show that this thing was done—as, for instance, the passage of a bill by yeas and nays which shall be entered on the journals—unless they do show it, the act can not be accepted as constitutionally adopted. The thing thus required is an additional means, outside of the enrolled act, but in concurrence with the signatures of the Speaker of the House of Representatives and President of the Senate upon it, authenticating its passage through the two houses, and renders the forgery of such an act more difficult. And as the passage of it by the yeas and nays can not, according to the Constitution, be shown otherwise than by the journals, they must, in respect to it, ‘import absolute verity. ’ The existence or non-existence of the statute depends on their testimony, whether they speak or are silent. ’ ’
This court also referred with approval to an early case decided by the Supreme Court of Illinois (Spangler v. Jacoby, 14 Ill. 297), where it was said:
“The Constitution requires each house to keep a journal, and declares that certain facts, made essential to the passage of a law, shall he stated therein.. If those facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the house, and is presumed to contain a full and complete history of its proceedings. If a certain act received the constitutional assent of the body, it will so appear on the face of its journal. And when a contest arises as to whether the act was thus passed, the journal may be appealed to to settle it. It is the evidence of the action of the house, and by it the act must stand or fall. * # * If the journal is lost or destroyed, this presumption will sustain the law, for it will be intended that the proper entry was made on the journal. But when the journal is in existence, and it fails to show that the act was passed in the mode prescribed by the Constitution, the presumption is overcome, and the act must fall.”
Judge Cooley, in speaking of a provision of this sort, had this to say:
"It will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a constitutional requirement in the passage of legislative acts, unless where the Constitution has expressly required the journals to show the action taken, as for instance, where it requires,- the yeas and nays to be entered. ’ ’
The same learned author, on another page of his work on this subject, said:
"It is also provided in the constitutions of some of the States that, on the final passage of every bill, the yeas and nays shall be entered on the journal. Such a provision is designed to serve an important purpose in compelling each member present to assume as well as to feel his due share of responsibility in legislation; and also in furnishing definite and conclusive evidence whether the bill has been passed by the requisite majority or not.” Cooley’s Constitutional Limitations (7 ed.), pp. 195 and 201.
This subject is thoroughly discussed in the opinion delivered by the Supreme Court of Delaware in the recent case of Rash v. Allen, 24 Del. 444, 76 Atl. 370, and it was there said:
“It can not be necessary to multiply authorities upon the point, that the court may, and should, take notice of the journals so far as to determine whether the Legislature, in the passage of an act, has done those things which the Constitution requires to be done, and also requires the journals to show. The Constitution, as to such matters, has made the journals the record evidence, and it must be the ultimate and conclusive evidence. Indeed, we do not know of any decision to the contrary, based on constitutional provisions like ours. * * # While some States have resorted to other sources of information than the journals when it was doubtful from the journals whether the act was constitutionally passed, it is otherwise when the fact in dispute is clearly established by the journals, and is required by the Constitution to be entered thereon. * * * But even though the original bills might be examined how could they show a compliance with the important, the essential constitutional requirement, to wit: The entry of the yeas and nays on the journal? How could such compliance be shown except by the journals themselves? Would it be possible to show by other records or dockets that a certain entry was made in the journal when the journal is in existence and clearly shows that it was not so made? Suppose the clerk or Speaker had made some entry somewhere which stated that the yeas and nays were taken and entered on the journal, but the journal is present and contains no such entry? Could such outside entry possibly show a compliance with the constitutional requirement that the yeas and nays shall be entered on the journal? We think not. ”
The fact that the journal entry shows that a vote was • taken on the adoption of amendments and fails to show one on the final passage of the bill, can not be explained as a mere clerical misprision and, for that reason, the entry treated as sufficient compliance with the Constitution. It is a mere matter of conjecture, so far as the record is concerned, whether the entry was erroneous, or whether the Senate erroneously voted the second time on the adoption of amendments. The very purpose of this constitutional provision is to provide evidence which leaves no doubt as to what was done, and unless that requirement is strictly complied with, its evidentiary force is entirely lost. It seems to me that the majority, by the conclusion they have' reached in this case, are wearing away a plain and mandatory provision of the Constitution and that in bending it to meet the exigencies of this case, they have broken it.
Mr. Justice Smith authorizes me to say that he concurs in the views here expressed.