The opinion
Me. Justice Williams
delivered a concurring opinion as follows:
My concurrence in holding that article 2, section 11, and article 3, section 18, are mandatory in character is compelled by the reasoning of Mr. Justice Buchanan and the chief justice in 'the opinions delivered in this case, as well as by the admirable statement of the rule by former Chief Justice Shields in State v. Burrow, 119 Tenn., 376 , 104 S. W., 526 , 14 Ann. Cas., 809.
When we view the nature and functions of a con.stitution, as the expression of the sovereign’s will in respect of the legislature and legislation, and as intended not merely to provide for the exigencies of a few years but to endure stably throughout a long period, the limitations imposed by it upon the power of the sovereign’s agencies should not be deemed less than mandatory.
Constitutional limitations of this character are of necessity rigid, if they are truly to impose the sovereign’s will upon the will of its agents.
The courts in their guardianship of the constitution, should be slow to rule otherwise.
*249 As said by Mr. Justice Lamar, in Board of Lake Co. v. Rollins, 130 U. S., 662 , 9 Sup. Ct., 651, 32 L. Ed., 1060 : “The liberty of the citizen, and his security in all his rights, in a large degree depend upon a rigid adherence to the provisions of the constitution and the laws, and their faithful performance. If courts, to avoid hardships, may disregard and refuse to enforce their provisions, then the security of the citizen is imperiled. Then the will, it may he the unbridled will, of the judge, would usurp the place of the constitution and the laws, and the violation of one provision is liable to speedily become the precedent for another, perhaps more flagrant, until all constitutional and legal barriers are destroyed, and none are secure in their rights. Nor are we justified in resorting to strained construction or astute interpretation, to avoid the intention of the framers of the constitution. . . . If unwise or hard in their operation, the power that adopted can repeal or amend, and remove the inconvenience.”
If, then, we proceed upon the basis that article 2,-section 11, stipulating that “not less than two-thirds of all members to which each house shall be entitled shall constitute a quorum to do business,” is mandatory, what weight shall be given, the house journal as evidence of the fact that such quorum was present or lacking on April 3d?
When we look to the journal entries, we find that on previous legislative days in compliance with parliamentary procedure the house had, without varia *250 tion, up to April lst-3d undertaken to ascertain tke ■existence of a quorum or no quorum by roll calls; that, for the first time, on April lst-3d, it failed to do so, "but on the contrary dispensed with the call. Further, "that while the form of response, “ Present but not voting,” was used to indicate the physical presence in the house, but refusal to vote, of two representatives, the form, “Not voting,” was used by the speaker in his ■effort to answer for thirty-five representatives. These two facts in conjunction tend strongly to raise affirmatively a showing of a lack of a quorum.
Yet further: It appears in the journal entry of April 3d that a representative offered an explanation, calling in question the matter of a quorum, and thereupon a point of order was made by another representative to the effect that the question of a quorum could not be determined except by a roll call. This point of ■order was sustained, and yet no roll call for the ascertainment of a quorum was ordered; and the explanation was denied entry on the journal.
Appellees properly treat of this attempted explanation as an attempted protest. The constitution, art. 2, sec. 27, provides: “Any member of either house ■of the general assembly shall have the liberty to dissent from and protest against, any act or resolve which he may think injurious to the public or to any individual, and to have reasons for his dissent entered on the journals.”
It is insisted in behalf of appellees that “the only protest allowed by the constitutional provision is one *251 against a bill or resolution which has passed.” This is too narrow a view and would unduly restrict the right of protest and postpone it to a time when it would be less availing, if, indeed, not unavailing in instances.
When we consider that this explanation of protest was directed immediately at the lack of a constitutional quorum to proceed to the passage of the bill over the governor’s veto, to my mind its suppression by the speaker and the house is pregnant with’ meaning, especially when viewed in conection with the two facts above commented on. I do not consider that a journal that shows that a protest, thus constitutionally raised to call in question the lack of power on the part of the house, has been stifled, is entitled' to be accredited by the courts with verity by way of conclusive presumption of regularity in respect of the presence of a quorum.
If it be said that the journal is otherwise silent touch - ing the presence or absence of quorum, it yet affirmatively appears that a mandatory provision in respect of the right of protest was violated in the suppression of that which tended to impeach the existence of the very thing we are asked to presume. We should refuse to so presume in favor of a body thus proceeding in disregard of a plain constitutional mandate. To do otherwise would be to place it in the power of a speaker and a few members by the fabrication of a journal to create evidence of power and then of power exercised in any manner they might will, silencing protest the while.
*252 Manifestly, the journal, under the rule obtaining in this State, comes under review by us as evidence, and it is for the court to say what dignity in grade shall be-assigned to it as evidence. If those who make such a journal leave upon it marks of manipulation in an effort towards showing apparent power, it is conceived that this should subtract from the dignity otherwise assignable to it, and leave the question open to proof.
What has been said by Mr. Justice Buchanan and the Chief Justice in regard to the effect of the proceedings in the house on June, 21st is so comprehensive and' convincing as to leave nothing to be here added, further than the statement of my concurrence.