Ellison v. Texas Liquor Control Board

GRAVES, Justice

(dissenting).

The dissent proceeds from these considerations : House Bill No.373 — purportedly enacted by the 47th Legislature on May 19 of 1941 — in the form in which it was signed by the Governor, was indisputably shown by the admissible evidence heard by the court below not to have been actually passed by both houses of the Legislature, as required By Articles' IV, Section 14, and III, Sections 30, 32 and 39, of the Constitution of Texas; it is, therefore, null and void ab initio.

The appellants, in their attacks on the measure in the trial court, protested against its enforcement upon that ground, under the specific allegation that the Senate of Texas “never voted for the passage of *328 the identical bill passed by the House, all of which is apparent from the contents of said H.B.373, as certified to by the Secretary of the Senate and the Chief Clerk of the House.”

A brief resume'of the facts substantiating this averment, which were shown in the manner and to the degree recited supra, is this:

“H.B.373 was passed by the House on March 20, 1941. Thereafter, it was passed by the Senate, ‘with amendments’, on April 17, 1941. This fact is shown by the certificate of Bob Barker, the Secretary of the Senate, to the Enrolled Bill.

“These amendments, several in number, are shown in the Senate Journal covering the proceedings for April 17, 1941, and are as follows:

“ ‘Amend H.B.373, page 3, line 35, by adding before the word “shall” the following: “or who does not hold a permit to write narcotic prescription.”

“ ‘Amend H.B.No.373, page 4, line 8, by adding after the words “such prescriptions”, the following: “in any dry area as defined by law.”

“ ‘Amend H.B.No.373 by striking out the following: Section IC page 4, beginning with the word “the” on line 20, as follows: “the keeping of records of prescriptions issued, the making of reports, and the disposal of unused, mutilated or defaced blanks, as it may deem necessary to require physicians to strictly conform to the provisions of this Act.” ’

“Thereafter, a message was sent to the House by the Senate to the effect that the bill had been passed by the Senate, with amendments. On April 22, after the bill had been returned to the House, a motion was passed ‘that the House do not concur in the Senate amendments, and that a conference-committee be requested to adjust the differences between the two houses on the bill.’ A message was sent to the Senate, informing it as to such action of the House.

“Thereafter, the Senate passed Concurrent Resolution No. 43 attempting to recall H.B.373 from the House; but the House refused. On May 7, and while the bill was in the possession of the House, the Senate adopted Resolution No. 125 to this effect: ‘that the Senate recede from the amendments adopted by the Senate to H.B.373 and declare said H.B.No.373 to have passed the Senate in the same form in which it was received from the Senate by the House and that the House be notified of this action.’ A message was sent to the House as to the adoption by the Senate of such resolution.”

These authorities, it is thought, fully support the view that this act was thus an abortive effort to pass a valid law through both Houses of the Legislature, as required by the Constitution: Article IV, Section 14, Texas Constitution; Article III, Sections 30, 32, and 39, Texas Constitution; Hunt v. State, 22 Tex.App. 396 , 3 S.W. 233 ; Caples v. Cole, 129 Tex. 370 , 102 S. W.2d 173 ; Ex Parte May, 118 Tex.Cr.R. 165 , 40 S.W.2d 811 ; Ewing v. Duncan, 81 Tex. 230 , 16 S.W. 1000 ; Humble Oil & Refining Co. v. State, Tex.Civ.App., 104 S.W.2d 174 ; In re Tipton, 28 Tex.App. 438 , 13 S.W. 610 , 8 L.R.A. 326 ; Day Land & Cattle Co. v. State, 68 Tex. 526 , 4 S.W. 865 ; Parshall v. State, Tex.Cr.App., 138 S.W. 759 ; Wright v. Wiles, 173 Tenn. 334 , 117 S.W.2d 736 , 119 A.L.R. 456 ; Southern Ornamental Iron Works v. Morrow, Tex.Civ.App., 101 S.W.2d 336 ; Longmire v. Taylor, Tex.Civ.App., 109 S.W.2d 525 ; Galbraith v. Bishop, Tex.Com.App. 287 S.W. 1087 ; Murchison v. White, 54 Tex. 78 ; Buss v. Smith, Tex.Civ.App., 125 S.W.2d 712 .

Since this conclusion, if sound, determines the merits of this appeal, and requires the striking down of the bill under review in any event, it is considered that the rather wide-ranging agenda tendered on other features by the very able briefs on both sides do not necessitate specific discussion; should a re-hearing ensue, however, they may be again considered then.

To state the gist of these facts in another way: The undisputed evidence shows that this act, as passed by the House of Representatives, was then passed by the Senate, with the “amendments” above set out. That the House thereupon refused to concur in such “amendments”, and that the bill was never thereafter returned to the Senate, nor did the Senate ever pass it in its present form, as shown by the photographic copy of it, as enrolled which has been brought up with this record.

The essential essence of these ultimate facts is thus shown upon the face of the enrolled bill itself, indeed, is implemented into it by the' certificates thereto of the Chief Clerk of the House and the Secre *329 tary of the Senate, respectively, which are both by law made parts of the enrolled bill.

There is, therefore, no illusion here that in the case of a bill “regular and valid on its face, carrying no death-wounds within itself, and a completed work,” the enrolled bill does not constitute conclusive evidence of its “passage”, as appellees’ brief and cited authorities make plain; but that doctrine would seem — from analogy to judgments at any rate — to be just as clearly confined to bills in every essential respect valid upon their faces, and, as unmistakably appears from the facts stated, supra, that is a far-cry from the situation here presented; See Murchison v. White, 54 Tex. 78 , and Ewing v. Duncan, 81 Tex. 230 , 16 S.W. 1000 .

This part of the appellants’ brief, edited only as to minutiae of no material importance, is adopted as the concluding part hereof, to-wit:

“So that, we now have all of the information in the enrolled act as to how it was passed, which shows that H.B.373, as passed by the House, was not acceptable to the Senate, but that that body amended the bill, and, as amended, passed it. Then the Senate sought to again amend the bill (by the use of its Senate Resolution No. 125), for the purpose of removing the quoted “amendments” previously voted. Amendments to a bill cannot be had by Senate Resolution, nor can amendments previously voted be removed by such Resolution. Humble Oil & Refining Co. v. State [Tex.Civ.App.], 104 S.W.2d 174 ; [Ex parte May, 118 Tex.Cr.R. 165 ], 40 S.W.2d 811 ; Caples v. Cole, [ 129 Tex. 370 ], 102 S.W. 2d [173], 175.

“In the Humble Oil Company case, [ 104 S.W.2d 185 ], the Court said: ‘Clearly this resolution attempts to amend a statute by a resolution * * * a statute cannot be amended by a resolution.’

“In the case of Caples v. Cole, [ 129 Tex. 370 ], 102 S.W.2d [173], 175, [176], the Supreme Court was passing upon a concurrent resolution passed and adopted by both houses, and in condemning same, said: ‘It is plain that the resolution not only undertakes to interpret or construe what the original act contained, but also to read into said law words and intentions not expressed in the original act. Statutes cannot be amended in that manner.’

“So that, Senate Resolution No. 125 did not have the effect of withdrawing the ‘amendments’ adopted by the Senate, which were attached to H.B.No.373, at the time it was voted on and passed by the Senate.

“The ‘death-wound’ apparent on the face of the bill, and its irregularity and invalidity, is apparent even though we concede for the purpose of this argument the right and authority (which is here specifically denied) of the Senate to amend H.B. 373 by said resolution so as to strike out the amendments attached to the bill, and a part thereof, at the time the Senate passed H.B.No.373. In this condition, we would find the bill as passed by the House without any subsequent vote having been taken thereon by the Senate after striking out and withdrawing the amendments thus attached and a part of its bill. The enrolled bill affirmatively shows that the only time the Senate ever passed the bill was ‘with amendments.’ No part of the enrolled bill evidences its passage by the Senate in the form in which it was received from the House. Therefore, the Senate never passed the bill as passed by the House. Neither journals nor other extrinsic evidence is necessary to substantiate this fact. It is disclosed substantially from an examination of the contents of the enrolled bill. Section 14, Article IV, of the Constitution of Texas, requires ‘Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval,’ etc.

“Judge Gaines, in the case of Williams v. Taylor, [ 83 Tex. 667 ], 19 S.W. 156 , and Judge Sharp, in the case of Jackson v. Walker, [ 121 Tex. 303 ], 49 S.W.2d 693 , and Judge Willson, in the case of Hunt v. State, [ 22 Tex.App. 396 ], 3 S.W. 233 , all hold that this provision of the Constitution that both branches of the Legislature shall pass a bill before it is presented to the Governor for approval, is mandatory. All of the opinions are to this effect. Judge Gaines and others merely refused to consider evidence beyond the enrolled bill to determine such question judicially.”

Under these conclusions, the trial court’s judgment should be reversed, and the cause remanded to it, with instructions to grant the injunction in all substantial respects as prayed for by these appellants.