Without stating how this case arose, it will suffice to say that the question presented for our decision is whether the proposed amendment to the Constitution, submitted at the last General Election November.8, 1938, as proposed amendment to the Constitution No. 24, was legally submitted at that election. It is not questioned that a sufficient vote for the amendment was cast to adopt it under the decision in the case of Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865. The question presented is whether the requirements of the' Constitution in regard to amendments proposed by the General Assembly were sufficiently complied with to authorize the submission of the amendment to the electorate.
There are no controverted or disputed questions of fact in the case. There is a stipulation as to the facts, which we have verified by an examination of the journals of the Senate and of the House of the 1937 session of the General Assembly.
The facts are that on January 15,1937, Joint Resolution No. 1 was introduced in the Senate. It was spread at length on the Senate Journal. The resolution was read the first time, the rules were suspended, and the resolution was read the second time and referred to the Senate Committee on Constitutional Amendments.
We copy from the published journal of the Senate, pages 106 and 107, the following recitals there found:
“SeNate Joint Resolution No. 1
“By Senator Norrell.
“A resolution to submit an amendment to the Constitution, to provide that the judge of the chancery court of each county shall preside over the probate court of such county; providing for the trial of all probate court matters before the .judge of said court, and for appeals from probate courts to the Supreme Court of Arkansas; and authorizing the legislature to provide for a clerk for the probate court, or to consolidate chancery and probate courts; amending 19, 34 and 35 of Art. YII of the Constitution.
“Be It Enacted by the House of Representatives of the State of Arkansas and the Senate of the State of Arkansas, a majority of all the members elected to each House agreeing thereto, that the following be, and the same is hereby, proposed as an amendment to the Constitution of the State of Arkansas, to-wit:
“Section 1. Section 34 of Art. VII of the Constitution is hereby amended to read as follows:
“ ‘Section 34. In each county the judge of the court having jurisdiction in the matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The judge of the probate court shall try all issues of law and of fact arising in causes or proceedings within the jurisdiction of said court, and therein pending. The regular terms of the courts of probate shall be held at such times as is now or may hereafter be prescribed by law; and the General Assembly may provide for the consolidation of chancery and probate courts.’
“Section 2. Section 35 of Art. VII of the Constitution of Arkansas is hereby amended to read as follows:
“ ‘Section 35. Appeals may be taken from judgments and orders of courts of probate to the Supreme Court; and until otherwise provided by the General Assembly, shall be taken in the same manner as appeals from courts of chancery and subject to the same regulations and restrictions. ’
“Section 3. Section 19 of Art. VII of the Constitution of Arkansas is hereby amended to read as follows:
“ ‘Section 19. The clerks of the circuit courts shall be elected by the qualified electors of the several counties for the term of two years, and shall be ex-officio clerks of the county and probate courts and recorder, provided that in any county having a population exceeding fifteen thousand inhabitants, as shown by the last Federal census, there shall be elected then a county clerk, in like manner as the clerk of the circuit court, and in such case the county clerk shall he ex-officio clerk of the probate court of such county until otherwise provided by the General Assembly.’
“Section 4. The provisions of the Constitution of the State of Arkansas in conflict with this amendment are hereby repealed in so far as they, are in conflict herewith; and this amendment shall take effect on the first day of January next folloAving its adoption.
“(Signed) W. F. Norrell.”
“Senate Joint Resolution No. 1 was read the first time, rules suepended, and read second time and referred to Committee on Constitutional Amendments.”
• • On January 25 the Senate Committee on Constitutional Amendments reported the resolution back to the Senate, with the recommendation that it “do pass.” On January 26 the resolution was called up for its third reading and final passage by the Senate. Again it was spread at length on the Senate Journal. It was placed on third reading and final passage. The roll was called by the secretary of the Senate and the yeas and nays were duly entered on the Senate Journal. There were 30 yeas and 1 nay. Four members of the Senate failed to vote. The resolution was declared adopted and was ordered transmitted to the House of Representatives.
On the same day, January 26, the secretary of the Senate, appearing before the bar of the House of Representatives, read to that body his official message transmitting to it Senate Joint Resolution No. 1, together with other measures which had been adopted by the Senate. That portion of this message dealing with Senate Joint Resolution No. 1 reads as follows:
“The sergeant-at-arms announced a message from the Senate, whereupon the secretary of the Senate appeared within the bar of the House and read the following communication:
“Fifty-First General
“Assembly
“AekANSas Senate
“Little Rock, Arkansas,
“January 26, 1937.
“Mr. Speaker: I am instructed by the Senate to inform your honorable body of the passage of Senate Joint Resolution No. 1 by Senator Norrell, the same being a resolution to submit an amendment to the Constitution to provide that the judge of the chancery court of each county shall preside over the probate court of such county; providing for the trial of all probate matters before the judge of said court, and for appeals from the probate court to the Supreme Court of Arkansas; and authorizing the legislature to provide for a clerk for the probate court, or to consolidate chancery and probate courts; amending §§ 19, 34, 35 of Art. VII of the Constitution.”
The secretary of the Senate duly delivered the resolution to the House, but neither the resolution nor the proposal embodied therein was spread at length on the House Journal.
On the same day of its receipt by the House the resolution was read for the first time in the House, the rules were suspended and the resolution was read the second time and it was then referred to the House Committee on Constitutional Amendments.
The descriptive reference which the House Journal makes to the resolution, reads as follows:
“Senate Joint Resolution No. 1
“By Senator Norrell.
“A resolution to submit an amendment to the Constitution, to provide that the .judge of the chancery court of each county shall preside over the probate court of such county; providing* for the trial of all probate court matters before the judge of said court, and for appeals from probate courts to the Supreme Court of Arkansas; and authorizing the legislature to provide for a clerk for the probate court, or to consolidate chancery and probate .courts; amending §§ 19, 34 and 35 of Art. VII of the Constitution.
“Was read the first time, the rules were suspended, and read the second time and referred to Committee on Constitutional Amendments.”
Neither the resolution nor the proposal embodied in it was spread at length on the House Journal, there being entered only the synopsis thereof above quoted.
On February 19 the House Committee on Constitutional Amendments reported the resolution back to the House, with the recommendation that it “do pass.” On February 23 the resolution Avas read the third time in the House, and placed on its final passage. The clerk of the House called the roll, and duly entered the yeas and nays on the journal. The vote was : Yeas 60; nays 20; not voting 19. The resolution Avas duly declared adopted by the House. A motion to reconsider the vote by which the resolution was adopted, and to lay that motion on the table, was passed, and the motion Avas accordingly laid on the table, but here again there was a failure to spread the resolution at length on the journal of the House.
On February 24 the clerk of the House returned the resolution to the Senate with the following message:
“The sergeant-at-arms' announced a message from the House, whereupon the chief clerk appeared Avithin the bar of the Senate and read the folloAving communication :
“Little Rock, Arkansas,
“February 24, 1937.
“Mr. President: I am instructed by the House of Representatives to inform your honorable body of the passage of Senate Joint Resolution No. 1 by Senator Norrell, the same being a joint resolution to submit an amendment to the Constitution, to provide that the judge of the chancery court of each county shall preside over the probate court of such county; providing for the trial of all probate court matters before the judge of said court, and for appeals from the probate court, to provide a clerk for the probate court, or to consolidate the chan-eery and probate courts, amending §§ 19, 34, and 35 of. Art. VII of the Constitution.
“And I herewith return the same.
Bespectfully submitted,
“(Signed) A. M. Ledbetter, Jr.
“Chief Clerk.”
• This message was spread upon the journal of the Senate, but the resolution to ■which it referred was not again entered upon the Senate Journal.
On February 26 the Committee on Enrolled Bills of the Senate reported to the Senate that it had compared the enrolled copy of Senate Joint Besolution No.-l with the original, and that it found the same correctly enrolled, and on the same day the Committee on Enrolled Bills reported to the Senate that it had on that day delivered to the Governor for his action Senate Joint Beso-lution No. 1, and on February 27 the Governor reported to the Senate that he had approved the resolution.
It may be first said that the Governor had no duty to perform in connection with the authorization of the submission of the amendment, and his action thereon in approving the amendment added nothing to, and subtracted nothing from, the validity of the legislative action. Mitchell v. Hopper, 153 Ark. 515, 241 S. W. 10.
The insistence is that the failure of the House of Bepresentatives to enter at length the resolution upon the Journal of that body is a fatal defect in the proceedings, for the reason that the Constitution requires this entry at length upon the journals of both the Senate and the House.
Let it be remembered that we are considering now only proposals to amend the Constitution submitted by the General Assembly. An entirely different procedure is applicable to amendments proposed under the Initiative and Beferendum Amendment No. 7. •
Section 22 of Art. SIX of the Constitution provides the manner in which proposals to amend the Constitution may be submitted to the people by the General Assembly. It reads as follows:
“Section 22. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each House, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election-for Senators and Representatives, at which time the same shall be submitted to the electors of the state for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so ■ submitted as to enable the electors to vote on each amendment separately. ’ ’
This section of the Constitution was -analyzed and construed in the ease of McAdams v. Henley, 169 Ark. 97, 273 S. W. 355, 41 A. L. R. 629, where the conflicting authorities and the different rules of construction were reviewed and discussed, and it would be a work of supererogation to review a question so thoroughly considered in that opinion by the late Chief Justice McCulloch.
That opinion points out that in proposing amendments to the Constitution the -General Assembly acts, not in its legislative capacity, but in the nature of a constitutional convention proposing amendments for action by the electorate. It was there pointed out that in proposing amendments to the Constitution something more was required than in passing ordinary legislation. Ordinary bills, in their passage through the General Assembly, may be identified by title and number, but not so with constitutional amendments. It is required that the latter be entered upon the journals of both the Senate and the House, as was there said, but that language must be construed with reference to the facts to which it was there applied.
There the facts were that a joint resolution proposing a constitutional amendment was passed in the Senate, but it was materially amended in the House, and was returned to the Senate as amended, and the Senate Journal did not reflect what action was taken by the Senate in regard to the House amendment.
Upon this state of the record Judge McCulloch said: “The real question is whether the omission from the Senate journals of the House amendment and. the substantial differences between the amendment entered on the journal of the Senate and the one submitted to the people renders the adoption by the people ineffectual.” The amendment submitted to the people was, in fact, the Senate resolution, as amended by the House. In other words, it was essential that the journals of both the House and Senate show definitely and certainly what amendment had been approved for submission, and that both the House and the Senate had concurred in the submission of the same amendment, and that the journals of the two Houses, when read together, make this fact definite and certain.
No such question is presented here. The resolution was properly entered upon the journal of the Senate, and the resolution was passed by the House without amendment of any- kind, material or otherwise. Had the House amended the Senate resolution, as was done in the case of McAdams v. Henley, supra, then it would have been necessary for the House to enter the resolution, as amended, in extenso, upon the journal of the House, and if the Senate concurred in the amendment made by the House, it would also have been necessary .for the Senate to again enter upon its journal the amended resolution, thus showing its concurrence therein. That was not done in the McAdams case, supra, and for that reason it was held, in answering the question above copied, which Judge McCulloch had propounded, that the submission of the amendment was not authorized and its adoption by the people was ineffectual.
The opinion in the McAdams case, supra, does say: “Our conclusion is that the proposal of an amendment to the Constitution is void unless the amendment is entered in extenso on the journals of each of the two houses of the General Assembly, and that a mere identifying reference by title or otherwise is insufficient. ’ ’ Bnt, as we have said, that language is to be construed with reference to the facts to which it was applied. The Senate' Journal in that case reflecting , the final action by the Senate recites only that “Senate General Resolution No. 9,. by Norfleet and Caldwell, was read the third time and placed on its final passage.” The resolution had then .been amended in, and returned by, the House to the Senate, and this identifying reference to the resolution as “Senate Joint Resolution No. 9, by Norfleet and Caldwell,” was insufficient. It did not reflect the Senate concurrence in the House amendment, as the resolution submitted by Norfleet and Caldwell did not meet the approval of the House, but had 'been amended by it.
But, after using the language above copied, Judge McCulloch immediately proceeded to say: “We do not mean to hold that it is essential to the validity of a constitutional'-amendment that the entire proposal as it may be affected by amendments adding or subtracting language in the course of its progress through the two houses must be spread upon the .journal of either house at the same place or at the same time. Different parts of the journals of the respective houses may, if connected up so that the whole of the amendment as finally adopted by both houses, appears upon the journal of each house, be treated as sufficient to make a complete record; but we do hold that where any substantial part of the amendment is omitted entirely from the journal of either one of the houses, even though it appears on the journal of the other house, it renders the proposal invalid. By way of illustration, we might take the journal of the House in this instance, which shows that the original resolution as introduced in the Senate was spread at large upon the journal, and.there were certain amendments which were also separately spread on the journal. Now, if the House had adopted the amendment by a yea and. nay vote spread on the record without actually re-entering the amended resolution, that would have been sufficient, because the original Senate resolution and the House amendment are connected together, so that it is in effect a complete entry of the whole amendment as adopted by the House. But when we come to the Senate Journal, we find nothing there but the entry of the original resolution. If the journal of the Senate had contained a recital of the House amendments and a corrected copy of the same was entered on the journal, an adoption of the amendment would have shown the whole of the resolution that the Senate adopted, and it would have been unnecessary to re-enter the original resolution as amended. The two entries, in other words, would have been sufficient; but, as the journal entry now stands, there is no disclosure whatever on the Senate journal of the House amendment, therefore the Constitution has not been complied with. Nor do we mean to say that a compliance with this provision must be absolutely literal. On the contrary, we say that the omission of an immaterial portion of an amendment — one not affecting its meaning or interpretation — would not affect its validity. It is only a substantial omission from the record which is fatal, and not merely immaterial words which do not affect the real meaning of the proposal. It is easily seen that the House amendments are substantial, and that the omission of them from the journal is an important departure from the text of the proposal as. amended by the House.”
When the .journals of the two houses are read together in the instant case, it is made certain that both houses passed the same amendment. The journal of the House did not identify the .Senate resolution to which it gave approval merely by reference to its title or number. On the contrary, there was entered upon the House journal a synopsis of the resolution which identifies it beyond the possibility of controversy as to whether the House was assenting to the Senate resolution. Had the House amended the Senate resolution in any particular, we would have presented the question involved in the Mc-Adams Case, and in that event, it would have been essential, as held in that case, to enter the resolution as finally passed in extenso upon the journals of both houses.
We conclude, therefore, that the instant case is distinguishable, under the facts, from the McAdams Case, and that it should be held in the instant case that the submission to the people of Senate Joint Resolution No. 1 was properly authorized.
There remains only the question presented as to when the amendment becomes effective. The amendment recites that it “shall take effect on the first day of January next following its adoption-.”
In the case of Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22, a proposed amendment, which provided that it should take effect and be in operation sixty days after its passage and adoption by the people of the state, received a majority vote of the electors at the general election held October 7, 1924, which was at that time the date fixed by law for the submission of constitutional amendments to the electors for approval or rejection. That amendment, like the one here under consideration, was proposed by the General Assembly. It was there held that the amendment was adopted on the date of the election, but did not take effect until sixty days thereafter (December 7, 1924), for the reason that the amendment so provided.
Upon the authority of this Matheny Case, we hold that the amendment was adopted at the general election held November 8, 1938, and, as the amendment provided that it shall be effective the first day of January next following its adoption, we hold that the amendment is now in effect and has been since January 1, 1939.
The prayer for a writ of prohibition will be denied.
Mehafey, J., concurs.