(concurring). I agree that under the facts here stated the presumption should be indulged that the bill in question was presented to the Governor within twenty days after the adjournment of the Legislature and, not having been vetoed, became a law without the Governor’s signature.
But the proposition, that a bill can become a law when the Legislature has passed one bill and the Governor has approved another, is, in my opinion, so fundamentally unsound that I must express my dissent, and, in doing so, explain my vote in upholding the act.
In my opinion the case of Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330, is controlling here. I dissented in that case, and have endeavored here, with all the earnestness I possess, to show the majority the unsoundness of the rule there announced, and here reaffirmed, but without success. The majority has deliberately reaffirmed that case, and I am as much bound by it as if it had my approval, and upon the authority of that case I must vote to uphold this act, because I can draw no distinction between that case and this one.
The decision is, however, so contrary to sound legal principle, and so void of support in precedent (I say this with the greatest respect for the views of the judges who make the opinion on that subject), and is of such vital importance as a question of polity, in that it nullifies, in a measure, at least, a constitutional prerequisite in enacting our laws, that I am constrained to express my dissent.
The Constitution does not contemplate that the Legislature alone can enact laws. Upon the contrary, as well said by the Supreme Court of Alabama in the case of Moog v. Randolph, 77 Ala. 597: “The clear logic of the case lies in the axiom, that a bill is cm entirety, and a law is the product of the combined, harmonious and unanimous action of the legislative and executive departments of Government, each acting strictly within the scope of its constitutional authority, and according to the prescribed forms of the constiutional mandate. When, therefore, as we have said, the measure assented to by one of these departments is n.ot, in substance and legal effect, the measure assented to by the other, but differs from it materially in its operation as a law, it is in no proper sense a constitutional or valid enactment.”
In the opinion in the instant case we have all recognized the necessity of executive consideration and approval before a bill can become a law; but what becomes of that executive function and prerogative, if it is not essential that the Governor consider and act upon the same bill passed by the Legislature?
Here, admittedly, the Legislature passed one bill, and the Governor approved another, for the majority opinion makes the difference between the two bills, and the materiality of the difference between the two bills, very patent, for it is there said: “By reference to the original bill published by the Legislature, it is apparent that the enrolling clerk omitted to incorporate in the enrolled bill the paragraph in the original bill describing nineteen sections of land traversed by the proposed road.” And, in addition to this recital of fact, the majority opinion expressly states that “It is true the omission from the enrolled bill constituted a material discrepancy between the enrolled and the 'original bill.”
This statement follows the premise, found in the majority opinion, that “In approving an enrolled bill, therefore, it may aptly be said that the Governor intends to, and does, approve the original or identical bill passed by the General Assembly. ’ ’ From a premise so unsound no correct conclusion could be expected.
No doubt the Governor might approve the original bill, if it were presented to him for his approval; but here the original bill was not presented to him. Upon the contrary, a materially different bill was presented to him for his approval. Are we warranted in assuming that the Governor is a mere automaton, whose business it is to sign anything presented to him? Is it not the theory of the Constitution that the Governor shall exercise an independent and intelligent judgment in considering and approving bills which are to become laws, and is he not warranted in basing that consideration upon the bill presented to him, and does he not have the right to assume that the bill presented to him for his consideration and approval is the very bill which the Legislature has passed? Have we not here sustained the very act under review by indulging the presumption that officers do their duty, and if there is such a presumption may the Governor not rely upon it in determining what action he will take upon a particular bill, or any bill, presented to him for his approval? And is it to be assumed that, because he is willing to give assent to the bill becoming a law which is presented to him, he would also assent that any other bill ■ dealing with the same subject, although matei’ially different, should likewise become a law?
In my opinion this was not the conception of the executive function entertained by the framers of our Constitution, who, in writing section 15, of article 6, of the Constitution, dealing with the subject, provided that “Every bill which shall have passed both houses of the General Assembly shall be1 presented to the Governor; if he approve it, he shall sign it; but if he shall not approve it, he shall return it, with his objections * *
In addition to the case of Athletic Mining & Smelting Co. v. Sharp, supra, the majority opinion cite, as supporting their view, the oases of Arkansas State Fair Assn. v. Hodges, 120 Ark. 131; Helena Water Co. v. City of Helena, 140 Ark. 597; Booe v. Road Improvement Dist. No. 4, 141 Ark. 140; Haney v. State, 34 Ark. 263. An examination of these cases will disclose the fact that, with the exception of the case of Athletic Mining & Smelting Co. v. Sharp, none is relevant to. the point under discussion, for in none of those cases was it contended that the Legislature had passed one bill and the Governor had approved a different one.
An infinite number of cases may be found like that of Haney v. State, from which the majority quote, in which ambiguous acts have been construed for the purpose of extracting the legislative intent; but it is quite obvious that is not the point -now being considered.
In this connection, I must be permitted to say that, because of the importance of the point involved, I have made a very diligent search of the authorities, and have found no case, except that of Athletic Mining & Smelting Co. v. Sharp, which supports the proposition that a bill approved by the Governor, materially different from the one passed by the Legislature, becomes a law. I do not refer to the cases decided in jurisdictions holding that the enrolled act is conclusively presumed to be regularly enacted; but my reference is to the decisions of the courts in those States having our rule, that published acts may be impeached by records of which we may take judicial knowledge.
There are a great mány cases dealing with the materiality of the difference between the bill passed by the Legislature and that approved by the Governor, in some of which it was held that the difference was material and in others that the difference was not material. But the controlling- point in all of those cases was that of materiality, and it was held, without exception, so far as I am advised, that if the bill passed by the Legislature is materially different from that approved by the Governor no valid act has been passed.
The rule is stated in volume 1 of Lewis ’ Sutherland Statutory Construction, section 52, as follows: “When it appears that the bill passed by one branch of the Legislature was in materially different terms from the bill passed by the other branch; or when one branch wholly failed to pass it; or when the bill approved by the Governor and authenticated as the law requires is materially different from the bill passed by the two houses, it will be held a nullity.”
See, also, cases cited in note to this section; and see, also, the Am. & Eng. Enc. of Law (2 Ed.), vol. 26, pages 546 (d) and 547 (c); Century Digest, vol. 44, columns 2327, 2328, 2329, 2330; Decennial Digest, vol. 18, p. 751, § 39; 36 Cyc. 966, note 77.
Among the cases to which our attention has been called is that of Bennett v. Johnson, 130 Ark. 507. But the point there was that certain lands had been twice described in the act, and we held this as an obvious error. iBut neither in that case, nor in any other case to which my attention has been called prior to that of Athletic Mining & Smelting Co. v. Sharp, supra, has it ever been held that it is immaterial that the Governor does not sign the same, or substantially the same, bill passed by the Legislature, if the variance arises out of a mere clerical error or misprision of an enrolling clerk or other clerical officer.
The true rule is that the cause of the error or misprision is unimportant — the Governor must approve the same, or substantially the same, bill which has been passed by the Legislature; and if there is a difference the determining test is that of materiality. If there is a material difference, the bill does not become a law, and the cause of the difference is wholly unimportant. Our own recent case of State v. Crowe, 130 Ark. 272, recognizes the necessity of presenting to the Governor for his approval the identical bill passed by the Legislature.
I, therefore, vote to uphold the act under consideration, but I do so only because of the binding effect of the prior decision of this court in the case of Athletic Mining & Smelting Co. v. Sharp, supra.
Upon this branch of the case I am authorized to say that the Chief Justice concurs in the views here expressed.