Mayor and Aldermen of West End v. Simmons, 165 Ala. 359, 51 So. 638 (Ala. 1910)


Supreme Court of Alabama.

Feb. 13, 1910.

 Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

 Action by the Mayor and Aldermen of West End against J. C. Simmons.  Judgment for defendant, and plaintiff appeals.  Affirmed.


 On September 29, 1903, the Governor signed what purported to be an enactment of the Legislature, entitled, "An act to alter and rearrange the boundaries of the city of West End, Jefferson county, Alabama," the effect of which was to bring certain territory within the limits of the city.  Thereafter the appellee did business as a dealer in coal in the added territory without having paid a license tax therefor as was required by an ordinance of the city.  Appellee being prosecuted therefor, the circuit court, on appeal, held the act to be void, because not passed in accordance with the Constitution.  By this appeal the city draws that ruling into question.

 The act signed by the Governor contained three sections.  If there were nothing else to be looked to, the presumption would be conclusive that the act as enrolled and signed by the Governor is the act passed by the Legislature.  But an inspection of the journals of the two houses reveals the fact that they never intended to, nor did in fact, vote for the enactment of the bill as approved by the Governor, but that by some inadvertence the enrolled copy of the act which reached his hands was rendered defective by the omission of four sections which had been put into the bill by amendment.  The purpose and effect of the amendatory sections was to make the proposed addition of territory to the city dependent upon the approval of the people of the territory, to be expressed at an election for which provision was made.  This was an amendment of utmost materiality; and, if it were less palpably material, it would not become our office to speculate upon the degree of importance attached to it in the legislative mind.  The fact adverted to appears in the following manner: On October 3, 1903, the House and Senate concurred in a resolution which recited the fact that sections 4, 5, 6, and 7 had been by inadvertence omitted from the bill, setting out the language of the omitted sections, and provided that "the said bill be enrolled and signed by the Speaker of the House and the President of the Senate and be sent to the Governor with this resolution."  On the same day the Legislature adjourned sine die.  The amended act was not signed by the Governor.

 The houses of the Legislature have inherent power and right during the session to amend their journals so as to make them speak the truth, and the recitals of the journals, being consistent with each other, must be taken as indubitably true.  It thus appears that there is no act approved concurrently by Senate, House, and Governor, nor any act which having been concurrently approved by House and Senate, went to the Governor under conditions which permitted it to become law without the Governor's signature.  The necessary consequence is that the act in question failed to become law.