#### Niven v. Road Improvement District No. 14 of Jefferson County.

Opinion delivered February 4, 1918.

1. Statutes — enactment — constitutional requirements — journal entry. — In order for the proper passage of an act by the Legislature, the Constitution requires not merely that the yeas and nays shall be taken on the final passage of the bill, but it is also required that the same shall be entered on the journal, thus making the journal entry the sole evidence of the proceedings.

2. Statutes — enactment — journal entry — constitutional requirement — proof.—The determination whether a legislative enactment was properly passed by a yea and nay vote, as required by the Constitution, can be had only from the journal of each house itself.

3. Improvement districts — validity—act no. 116, acts of 1917.— Act No. 116, Acts of 1917, held not properly passed and to be invalid.

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;

reversed.

Roive.ll ds Alexander, for appellant.

1. The act is void. The bill was not read for the third time and the vote was not taken by yeas and nays, nor entered of record in the journal. Only the journal as filed with the Secretary of State can be looked to. Const. Art. 5 § 21. 33 Ark. 17. The memoranda and minutes of the officers can not be considered but only the journal. 160 Ala. 181; 119 Id. 487; 76 Atl. 370; 90 Ark. 174. . .

Caldioell & Triplett, for appellees.

1. The Senate journal does not show the final passage of the act nor the aye and nay vote. The provision of the Constitution is mandatory. 61 Ark. 226. The courts not only look to the journal but to the records of the Secretary of State. 72 Ark. 565; 83 Id. 448; 103 Id. 109; 108 Id. 184; 110 Id. 269. Also to the endorsements upon the original bill. 103 Ark. 109; 110 Id. 269. Where there is a variance between the journal and the1 manuscripts from which it is prepared, the manuscripts will prevail. 40 Ark. 200; 110 Id. 269. Courts will not *241allow an act to fail because of mere clerical misprison. 34 Ark. 263; 40 Id. 200; 51 Id. 559; 103 Id. 109; 110 Id. 269; 104 Id. 16. They correct mere errors. • 104 Ark. 16; 34 Id. 263-8.

The original manuscripts, minutes and endorsements constitute the real journal and these all show that the act was duly passed. It is on file in the office of the Secretary of State, duly signed and published. The act was duly passed and is valid. 34 Ark. 283; 110 Id. 269; 44 Id. 536; 32 Id. 414, 496; 86 Id. 69-75; 90 Id. 174; 40 Id. 200; 83 Id. 448; 72 Id. 563; 103 Id. 109; etc.

The manuscripts prevail over the journal where there is a variance.

McCULLOCH, C. J.

In this case there is an attack upon the validity of an improvement district on the ground that the special statute creating the district* was not enacted by the General Assembly in the manner prescribed by the Constitution, in' that on the final passage of the bill in the Senate the vote was not taken by yeas and nays and the names of those voting for or against the measure entered on the journal.

The Constitution provides that “no bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the persons voting for and against the same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor. Art. V, Sec. 21. In another section of the same article (Sec. 11), it is provided that each house “shall keep a journal of its proceedings; and from time to time publish the same.” It has been repeatedly decided by this court that the constitutional provision quoted above is mandatory and that the omission on the part of the law makers to comply with the same is fatal to the validity of a statute. Vinsant v. Knox, 27 Ark. 278; Smithee v. Garth, 33 Ark. 17. In Smithee v. Garth, supra, the court, in construing an identical provision of the Constitution of 1868, said: “But whatever may *242have been, the circumstances attending the supposed passage of the bill, it becomes our duty to hold the legislative department to a strict compliance with a mandatory provision of the Constitution, which in- every case on the final passage of a bill, requires that the vote be taken by yeas and nays, and entered upon the journal. Manifestly the object of recording the yeas and nays is not to show that a quorum of the members of the House is present, or that a majority votes for the bill. The journal may show that there was a call of the House before the final vote on the-passage, of the bill was taken, and that a quorum was present, and indeed all the members present, and the journal may also state that a majority voted for the bill; yet if the yeas and nays be not entered on the journal, the requirement of the Constitution is not complied with, and the bill does not become a law. The Constitution says the yeas and nays shall be entered on the journal; and we have no right to say that this need not be done, or that half compliance is sufficient. It is not sufficient to enter the yeas and omit the nays, nor to enter the nays and omit the yeas, and in all cases the names of those voting in the affirmative and negative must necessarily be entered on the journal.”

(1-2) It will be observed that the constitutional requirement is not merely that the yeas and nays $hall be taken on the final passage of the bill, but it is also required that the same be “entered on the journal,” thus making the journal entry the sole evidence of the proceedings. But the particular controversy in this case arises over the question as to what constitutes the journal, and whether the journal proper may be supplemented by other records in order to show that the yea and nay vote was taken on the final passage of the bill. .

It appears from the testimony of the secretary of the Senate that written minutes or memoranda of the daily proceedings were taken by him and his assistants. The journal clerk also kept minutes from which the permanent journal was made up. The secretary himself *243kept minutes of the votes by yeas and nays on tbe final passage of bills, and he kept tbis on tbe regular printed roll call slips containing tbe names of tbe members checked off so as to indicate tbe vote of each on tbe passage of tbe bill, and that when tbe vote was completed be handed tbis roll call list to tbe journal clerk who attached it to bis minutes. Tbe minutes of tbe journal clerk showed tbe vote on tbe final passage of tbe bill, and the yea and nay vote, but tbe minutes of tbe secretary of the Senate showed only that tbe bill bad been passed, without giving tbe vote by yeas and nays. Tbe minutes kept by tbe secretary of tbe Senate were filed with tbe Secretary of State and are on file there now, but they are not authenticated either by tbe certificate of tbe secretary of tbe Senate or tbe presiding officer. Tbe minutes kept by the journal clerk have not been preserved. It is conceded that tbe journal book now on file with tbe Secretary of State does not show tbe final passage of this bill, but tbe witnesses testify that tbe daily minutes of tbe journal clerk from which tbe journals were finally made up did contain tbe printed slip showing tbe roll call on tbe vote on tbe final passage of tbis bill. The- Secretary of the Senate testified that be also made up tbe manuscript for tbe printed journals, now in tbe bands of tbe printer, and that tbe final passage of tbe bill, and the record of tbe yea and nay vote thereon was shown. There is, therefore, no record in the office of tbe Secretary of State containing an entry of tbe yeas and nays on tbe final passage of this bill.

It is contended that tbe original minutes or memoranda kept by tbe journal clerk ought to be treated as a part of the journal which shows compliance with tbe statutory requirement, and that tbe loss of those minutes or tbe failure to preserve tbe same ought not to invalidate tbe statute. Tbe framers of the Constitution requiring that each House of the General Assembly should keep a journal of its proceedings, used that term in its ordinary sense to mean a permanent record, which we *244judicially know has been regularly complied with by each House in the past, and this being true, the daily minutes or memoranda are merely temporary and do not constitute a part of the permanent record designated as the journal. The argument might be sound if we were dealing merely with the question of evidence such as we had in the case of Butter v. Kavanaugh, 103 Ark. 109, and Mechanics Building & Loam Assn. v. Goffman, 110 Ark. 269, where we considered endorsements on the bills and other entries for the purpose of identifying the particular measure under consideration or the legislative steps that were being taken. In the Coffman case the question was whether those endorsements might be considered in determining whether the vote recorded on the journal was on the adoption of an amendment or on the final passage of the bill. Here we are not dealing with matters of evidence in identification of the proceedings, but we are to determine whether the plain provision of the Constitution has, according to the sole evidence authorized by the Constitution, been complied with, and in this matter we must follow as our guide the language of the Constitution, and it does not admit of a construction that the entry of the yea and nay vote anywhere except on the journal itself is sufficient. The daily minutes kept by the Secretary of the Senate or the journal clerk from which the permanent record is finally made up does not constitute a part of the journal within the meaning of the Constitution, and the entry there of the final vote is not sufficient. The statute provides that when the daily proceedings are made up in manuscript form and signed by the presiding officer, and attested by the secretary, they shall be filed in the office of the Secretary of State, in addition to the journal. Kirby’s Digest, § 3738. That statute does not make the daily record a part of the journal. On the contrary, it presupposed that a permanent journal will also be kept and preserved in compliance with the requirement of the Constitution.

*245(3) It follows from what we have said that the statute creating the district was not legally passed, and that the proceedings thereunder are void. The decree is, therefore, reversed and the cause remanded with directions to enter decree in accordance with this opinion.

HUMPHREYS, J., not participating.

*

Act 116, Vol. 1, p. 601 session Laws of 1917. — (Reporter).