페이지 이미지
PDF
ePub
[ocr errors]

adjournment, prevent its return, in which case, the Governor disapproved said item, writing it shall become a law unless he shall file it with across it the words, "vetoed and disapprovhis objections in the office of the secretary of state and give notice thereof by a public procla- ed," and on the same day the bill was signmation within 20 days after adjournment. Sec-ed by the Governor following the notation tion 17 declares that the Governor shall have approved, except as to the items above vepower to disapprove any item or items in any toed and disapproved.” The bill as signed appropriation bill embracing distinct items, and such parts shall be void unless repassed accord- was on the 27th day of March, 1915, filed in ing to the rules prescribed for passage of the office of the secretary of state. other bills over the executive veto. An appro- It is contended for appellant that the acpriation bill containing several items was presented to the Governor after the adjournment of tion of the Governor in disapproving the septhe General Assembly. Held, that in disapprov- arate items appropriated in the act, met the ing particular items he is bound to comply with constitutional requirements, and that the bill the provisions of section 15 requiring the filing as signed became the law, excluding the of objections with the bill and the giving notice thereof by public proclamation.

items of appropriation disapproved which be[Ed. Note. For other cases, see Statutes, came void. The appellee, on the other hand, Cent. Dig. $ 35; Dec. Dig. Om 32.]

contends that the attempted disapproval and 2. STATUTES Om 32 - ENACTMENT VETO BY veto of the distinct item of appropriation GOVERNOR. Where the Governor, who wrote "vetoed was ineffectual because of the alleged fail

“ and disapproved" across items of an appropria- ure of the Governor to file the bill with tion bill, signed the entire bill with a notation, his objections in the office of the secretary of "approved except as to items above vetoed and state and give notice thereof by public procdisapproved,” and then filed it, there was a sufficient filing of his objections thereto, there be-lamation within 20 days after the adjourning no requirement in section 15 that the objec- ment of the General Assembly. tions be written separately or upon a different Article 6, sections 16 and 17, of the presinstrument.

ent Constitution of 1874, provide the proce[Ed. Note.-For other cases, see Statutes, dure required for the approval and disapprovCent. Dig. 35; Dec. Dig. Om 32.]

al by the Governor of bills passed by the 3. STATUTES 33 - ENACTMENT VETO BY GOVERNOR-PROCLAMATION.'

General Assembly. Section 15 requires a bill As the word "proclamation” used in section passed by the General Assembly "shall be 15 means the act of proclaiming or publishing, presented to the Governor; if he approve it, a formal declaration, an avowal, as well as an he shall sign it; but if he shall not approve official public notification by some executive authority of an event of importance to the pub- it, he shall return it, with his objections, to lic, the filing of such appropriation bill with the the house in which it originated” for reconsecretary of state where is was accessible to sideration there, provides for the passage of the public, was a sufficient proclamation of the the bill over his objections and further as veto of the separate items.

[Ed._Note.-For other cases, see Statutes, follows: Cent. Dig. § 36; Dec. Dig. Om33.

"If any bill shall not be returned by the GovFor other definitions, see Words and Phrases, ernor within five days, Sunday excepted, after it First and Second Series, Proclamation.)

shall have been presented to him, the same shall Hart and Smith, JJ., dissenting in part.

be a law in like manner as if he had signed it,

unless the General Assembly, by their adjournAppeal from Circuit Court, Pulaski Coun-ment, prevent its return, in which case it shall

become a law, unless he shall file the same, with ty; G. W. Hendricks, Judge.

his objections, in the office of the secretary of Action by John H. Page, Commissioner of state and give notice thereof by public proclamaMines, Manufacture and Agriculture, against tion within twenty days after such adjourn

ment.” M. F. Dickinson, Auditor. From a judgment “Section 17. The Governor shall have power to for petitioner, defendant appeals. Reversed disapprove any item or items of any bill making and remanded.

appropriation of money, embracing distinct

items; and the part or parts of the bill approvWallace Davis, Atty. Gen., and W. J. Tered shall be the law, and the item or items of apry, of Little Rock, for appellant. Mehaffy, propriations disapproved shall be void, unless Reid & Mehaffy and Hal L. Norwood, all of repassed according to the rules and limitations

prescribed for the passage of other bills over Little Rock, for appellee.

the executive veto."

The said section 17 gives the Governor KIRBY, J. This appeal challenges the power to disapprove any item or items of validity of the veto of the Governor of cer- any bill making appropriation of money, emtain separate items in Act No. 277 of the bracing distinct items, and declares that the General Assembly of 1915, appropriating part or parts of the bill approved shall be the funds for the maintenance of the office of law, and the item or items of appropriation the commissioner of mines, manufactures and disapproved shall be void unless repassed acagriculture. The bill as passed contained the cording to the rules and limitations prescribfollowing:

ed for the passage of other bills over the ex"Item No. 10. For postage and express $2,000."ecutive veto; while by section 15 every bill

The bill, including said item, was present presented to the Governor after the adjourned to the Governor for his approval on Marchment of the General Assembly becomes a law 18, 1915, 7 days after the adjournment of the whether approved and signed by the GovGeneral Assembly, and on March 25, 1915, I ernor or not, "unless he shall file the same, with his objections, in the office of the sec- , public notification by some executive authority retary of state and give notice thereof by of the occurrence of an event important to the public proclamation within twenty days after relation to a matter impending, as, a proclama

public, or of command, caution, or warning in such adjournment."

tion of peace. (b) An announcement made by There is a wide difference, in the opinion a ministerial officer of a court of something to of the writer, between the provisions of the be done, as that court is about to open or ad

journ, or a prisoner to be discharged. (4) A Constitution relative to the disapproval of a formal declaration; an avowal.” bill and the disapproval of a distinct item in

See, also, Webster's Dictionary. an appropriation bill. In the first instance

In Lapeyre v. United States, 19 Wall. (U. the Governor must take the affirmative ac- s.) 191, 21 L. Ed. 606, a proclamation of the tion prescribed to prevent the bill becoming President relieving certain persons from a law, while in the latter the part of the bill penalties and removing all restrictions from approved becomes the law and the item of commerce and trade in certain sections of the appropriation disapproved is void unless re- United States, executed or made on June 24, passed by the Legislature. There is no pro-1865, but not published in the newspapers unvision in said section 17 which authorizes til the 27th of June, nor published or promulthe Governor to disapprove a distinct item in gated anywhere or in any form before the an appropriation bill, requiring him to file 27th, “unless its being sealed with the seal his objections with the bill in the office of of the United States in the Department of the secretary of state and give notice thereof State was a publication or promulgation by public proclamation. The provision here- thereof” was held valid and effectual and in, merely because the Legislature was ad- published as of the day of its date. journed and there could be no repassing of

In Wolsey v. Chapman, 101 U. S. 755, 25 the disapproved item over the Governor's L. Ed. 915, the language of the act under conveto, does not require that in order to make

sideration was: effectual the disapproval of any such item

"Any public land, except such as is or may of the bill that the Governor shall follow be reserved from sale by any law of Congress the procedure laid down in said section for or proclamation of the President of the United

States." the veto of bills. In other words, the writer is of opinion that the Governor is authorized

And the court held an order sent by the by said section 17 to disapprove any item or head of one of the executive departments to items of an appropriation bill embracing dis- the Commissioner of the General Land Oftinct items, thereby rendering them void, and fice directing it, effectual to reserve the land that only that part of the bill approved be- from sale as a proclamation of the President comes the law, excluding from it, necessarily, saying:

, the items disapproved, and this without any lands from sale, is his official public announce

"A proclamation by the President, reserving further action taken by him whatever.

ment of an order to that effect. No particular [1] The majority of the court, however, is form of such an announcement is necessary. of opinion that the provisions of said sec- is sufficient if it has such publicity as accomtion 15 of the Constitution requiring the plishes the end to be attained. If the President

himself had signed the order in this case, and filing of objections with the bill and the giv- sent it to the registers and receivers who were ing notice thereof by public proclamation are to act under it, as notice to them of what they applicable and to be complied with in the were to do in respect to the sales of the public disapproval of a distinct item of appropria- have been reserved by proclamation within the

lands, we cannot doubt that the lands would tion in an appropriation bill, and also that meaning of the statute. Such being the case, it the Governor's action in writing “Disapproved follows necessarily from the decision in Wilcox and vetoed” across the face of the said item v. Jackson that such an order sent out from the

annropriate executive department in the regular of appropriation, and signing the bill after course of business is the legal equivalent of the the notation "Approved, except as to the President's own order to the same effect. It above items disapproved and vetoed," and was, therefore, as we think, such a proclamation filing the same in the secretary of state's of by the President reserving the lands from sale

as was contemplated by the act." fice, was a substantial compliance therewith.

This language was approved in Wood v. [2] The filing of the bill with said nota- Beach, 156 U. S. 550, 15 Sup. Ct. 410, 39 L. tion written across the face of the item dis- Ed. 528. A verbal announcement by the cirapproved was a sufficient statement of his cuit clerk was held the proclamation of the objections thereto, and there is no require result of an election in Mackin v. State, 62

, ment that the objections shall be written sep- Md. 244, and the posting of a notice of meetarately or upon a different instrument.

ing on the door of the council chamber and [3] Now as to the giving of notice by pub- sending a copy thereof by mail to the memlic proclamation. The word “proclamation” bers of the council by the mayor, a compliis to be given its usual and ordinary mean

ance with a statute authorizing the mayor ing, it not having been apparently used oth- to convene the council in special session by erwise. It is defined by the New Standard proclamation in Cushing v. Hartwig, 138 Mo. Dictionary (Funk & Wagnalls) as follows:

App. 114, 120 S. W. 109. “(1) The act of proclaiming or publishing. (2) That which is proclaimed or published, es

No particular form of proclamation is prepecially by authority; any announcement made scribed or indicated by the Constitution, but proclamation," and from the authorities it | Legislature is in session, he returns it with appears that a proclamation is public when his objections to the house in which it origmade and sufficient if it has such publicity, inated. If the General Assembly by their or accomplishes the end to be attained. Here adjournment prevent the return of the bill, the bill was returned with his objections by and it does not meet with the approval of the the Governor to the office of the secretary Governor, he is required to file it, with his of state where it was accessible and open to objections, in the office of the secretary of inspection of the public with his signature state, and give notice thereof by public procshowing that the bill was approved, “except lamation. The objections of the Governor as to the items above disapproved and ve- are required to be filed with the bill, and his toed.” The secretary of state, the officer re- proclamation is issued as the evidence of his quired by law to publish the acts and reso- disapproval. When these provisions have lutions of the General Assembly, was thus been complied with, the record is made which informed that the distinct items of appro- furnishes the evidence of the action of the priation across which had been written “dis- Governor, and unless these provisions are approved and vetoed" were void and not to complied with there is no such record as the be included in the publication of the law ap- Constitution contemplated should be made to proved. The public notice by the proper of- evidence the executive action. It is not ficer was therefore sufficient to accomplish denied that if the Governor should disapthe end to be attained, and the constitutional prove a bill after the adjournment of the requirements were substantially complied Legislature, he would have to give notice by with. It follows that the veto or disapproval public proclamation. This would be true was effectual and the items so disapproved even though the bill were an appropriation void.

bill, which consisted of a single item. Then The court therefore erred in sustaining the why should not a proclamation be necessary if demurrer to the answer, and its judgment is one or more of several items were disapprovreversed and the cause remanded, with in- ed? There appears to be no reason for this structions to overrule it.

formality in the one case, which is not equal

ly applicable to the other. SMITH, J. (dissenting). This case has We think the purpose of section 17 was to been decided upon a question which was not confer upon the Governor the power to disraised or discussed in the briefs. It was ar- approve any particular item or items of an gued by counsel for appellant that the meth- appropriation bill, without rendering other od of vetoing, in toto, the bills referred to in parts thereof void, but this power, of course, section 15, article 6, of the Constitution is should be exercised in the manner provided entirely distinct and different from the meth- by the Constitution for approving or disapod of disapproving, or vetoing, an item or proving bills, and section 15 must be looked items of a bill making appropriations of mon- to for these directions. If this be true, then ey, referred to in section 17 of article 6. It it must necessarily follow that where the was contended that section 17 conferred the General Assembly by its adjournment has right of vetoing items of an appropriation prevented the return of the bill to the house bill, without defining how that right was to in which it originated, the Governor must be exercised, and that the provisions of sec- file the bill, with his objections, in the office tion 15 could not be looked to for directions of the secretary of state and give notice by on that subject, because that section related public proclamation, if he wishes to veto to the approval or disapproval of bills in toto; some item of it. and that, therefore, the provisions of section Was a proclamation made? The majority 15, requiring notice of the disapproval of a has answered in the affirmative. bill to be given by public proclamation did submit this is ipse dixit. Cases cited in the not apply, when the veto power had been ex- majority opinion give no support to the view ercised as to items of an appropriation bill. that the notation made by the Governor on It was not contended that the provisions of the bill is a proclamation, and after a somesection 15 had been complied with. It was what diligent search of the authorities we not urged that any proclamation had issued. have failed to find any case supporting that It was only insisted, but very earnestly in- holding. Cases cited in the majority opinion sisted, that no proclamation was necessary, deal with the question of the promulgation under the circumstances of this case. This of proclamations. We have no such question view was accepted by the member of the here. We insist that the Governor made no court, who wrote the opinion for the ma- proclamation, and therefore none could have jority, and it occurs to us that this was the been promulgated. real question in the case.

Section 15 deals with a subject of the Upon the question of the necessity for a highest importance, and its provisions are proclamation our views accord with those of necessarily mandatory. The makers of the the majority of the court. Section 15 of Constitution had some purpose in mind in article 6 provides that when the Governor requiring the Governor to give notice by approves a bill he shall sign it. This signa- public proclamation. In this manner the ture is made the evidence of executive ap- Governor is allowed pro tanto to set aside

cording this right to the chief executive has , 3. INSURANCE 83 – AGENTS INDEMNITY been much debated in the making of Constitu

BOND-DEFAULT COVERED.

Where the bond of a local agent of an intions and the right is one which has not al

surance company was conditioned that he should ways been granted. And it is universally held keep a true and correct account of all moneys that it is a right which, when granted, must received by him for the company and pay same be exercised within the time, and in the man- over, should report business transacted, and in ner, provided by the instrument granting it. every way faithfully perform his duties as agent

in compliance with the instructions of the genIt is not a right to be lightly exercised, but eral agent, and should, at the end of the agency, when exercised there should be no doubt of deliver up to such general agent all moneys, that fact. A record should be made, and that policies, books, and property due from him or record is the one the Constitution provides should do so, and reimburse such general agent

in his possession, and that, if such local agent to preserve the evidence of its exercise, for all extra expense occasioned by any dewhich under our Constitution is a public linquency or failure to comply with such condiproclamation. Here the Governor wrote tions, the obligation should be void, such bond

did not bind the local agent and his sureties across the item under consideration the to reimburse the company for the payment of words "Vetoed and disapproved,” and a sim- losses occurring on policies issued by the local ilar notation was made across the face of agent on prohibited risks. other items. If there was a proclamation Cent. Dig. 107–110; Dec. 'Dig. (ww83.]

[Ed. Note.-For other cases, see Insurance, this notation constitutes it, and it occurs to us that the statement of the proposition car- Appeal from Circuit Court, Lawrence Counries its own refutation. The Governor does ty; Dene H. Coleman, Judge. not sign a bill or write anything on it for Suit by the Security Insurance Company the purpose of disapproving it. The Consti- against J. N. Jaggers and others. Judgment tution provides that if he approve a bill he for defendants on demurrer, and plaintiff apshall sign it, but if he disapproves the bill, peals. Affirmed. or any portion of it, he does not evidence

The appellant, an insurance company, that disapproval by marginal notations. He brought suit against J. N. Jaggers, as prinmust make the record which the Constitu-cipal, and the sureties on his bond given to tion requires ; i. e., a proclamation. Arkan- secure the faithful performance of his duties sas State Fair Ass'n v. Hodges, 178 S. W. 939. as local fire insurance agent to T. A. Man

Believing that this notation on the bill, ning, as general agent for the Security Fire for the making of which the Constitution Insurance Company. contains no authority, is insufficient to meet

The complaint alleges that the insurance the requirement that there be a public proc-company, through its general agent, T. A. lamation, and, believing that this notation Manning, appointed J. N. Jaggers its local would never be recognized as a proclamation, fire insurance agent, at the town of Walnut in the absence of that label placed on it by Ridge, with authority to sign, issue, and dethe majority, we dissent from that holding. liver policies of insurance, on the property

in said town, in accordance with the rules HART, J., concurs.

and regulations of said company, and that said defendant agreed, in accepting said

agency, to faithfully perform his duty as SECURITY INS. CO. V. JAGGERS et al.

said agent, in compliance with the instruc(No. 193.)

tions of the general agent, through his prop(Supreme Court of Arkansas. Oct. 25, 1915.) er representatives. It then states that Jag1. PRINCIPAL AND AGENT Cm143—UNDISCLOS-gers and his sureties executed the bond, conED AGENCY-SURETY BOND-WHO MAY EN- ditioned for the faithful performance of his FORCE-PRINCIPAL OF OBLIGEE.

duties, by Jaggers the agent, and that: Where a bond securing the performance of "They would pay to said general agent all his duties by a local insurance agent was exe- moneys due from said J. N. Jaggers, and would cuted by him to the general agent of the com- reimburse said general agent for all expenses ocpany for the latter's benefit, though it was not casioned by any delinquency or failure on the disclosed therein as the principal obligor, such part of said J. N. Jaggers to comply with the company, nevertheless, could bring suit on such conditions of said bond, and attached a copy bond for the local agent's default.

of same to the complaint, and made it a part [Ed. Note.-For other cases, see Principal and thereof as Exhibit A.” Agent, Cent. Dig. 88 502-512; Dec. Dig. 143.)

It states further that J. N. Jaggers deliv

ered two policies of insurance to certain per2. PLEADING O216DEMURRER-CONSIDERATION OF EXHIBIT_STATUTE.

sons, the owners of property that were proUnder Kirby's Dig. § 6128, providing in hibited risks, insuring one in the sum of $1,part that, if the action is founded on a bond, the 500, and the other for $400; that the agent original or a copy thereof must be filed as part was without authority to issue such policies, of the pleading if the party can produce the instrument, in an insurance company's action was notified to cancel and have them returnagainst its local agent and the sureties on his ed as he was authorized to do under the probond, the bond, filed as an exhibit to the com- visions of the policies, and failed to do so; plaint, could be considered on demurrer to the that a loss occurred under both policies for pleadings.

[Ed. Note.-For other cases, see Pleading, which the insurance company became liable, Cent. Dig. 88 535–539; Dec. Dig. Om 216.] and which it adjusted, agreeing to pay to Fletcher Bros. $1,326.87 under one policy, , bond was executed, it nevertheless had the and to W. A. Bynum $400, under the other right to bring suit thereon. Mass. Bonding policy; that it incurred the expense of send Co. v. Higgins, 174 S. W. 1150; Miss. Valley ing the adjuster to Walnut Ridge for the ad-Const. Co. v. Abeles, 87 Ark. 374, 112 S. W. justment of the loss of $50, and

894; Bryant Lumber Co. v. Crist, 87 Ark. "plaintiff states that the defendants, J. N. Jag- 134, 112 S. W. 965; Frazier v. Poindexter, gers, E. H. Tharp, and J. C. Hall, are liable to 78 Ark. 241, 95 S. W. 464, 115 Am. St. Rep. it to the extent of $300 on the said bond hereto: 33, 8 Ann. Cas. 552; Mechem on Agency, $$ fore mentioned, because said loss was sustained by reason of the failure of said Jaggers to faith-768–770; Shields v. Coyne, 148 Iowa, 313, fully perform his duties as agent in compliance 127 N. W. 63, 29 L. R. A. (N. S.) 472, Ann. with the instructions of the general agent, in Cas. 1912C, 905; note, 31 Cyc. 1598. that said Jaggers did not faithfully perform

[2] The action is founded on the bond of his duties as such agent, and did not comply with the instructions of the general agent in appellees, which was filed as an exhibit to writing said policies, which were on the pro- the complaint, and may be considered upon hibited list, and also in failing to cancel said demurrer to the pleadings. Section 6128, Kirpolicies after instructions to do so from said by's Digest; Sorrells v. McHenry, 38 Ark. general agent."

127; Euper v. State, 85 Ark. 223, 107 S. W. The bond is conditioned as follows:

179. "The condition of this obligation is such that, whereas the above-named J. N. Jaggers, having

[3] Under the terms and conditions of the been appointed by said general agent as his bond, Jaggers, as principal, was bound to agent for the town of Walnut Ridge, county of keep a true and correct account of all monLawrence, state of Arkansas, and as such agent eys received by him for the insurance comwill receive divers sums of money, policies, chattels, and other effects, the property of said pany and to pay same over, to make a report T. A. Manning, general agent, and J. N. Jag- of the business transacted, and in every way gers, being bound to keep true and correct ac- faithfully perform the duties as agent in count of the same, pay over such money correctly, and make regular reports of the business compliance with the instructions of the gentransacted by him to the said T. A. Manning, eral agent, through his proper representageneral agent, and in every way faithfully per- tives, and at the end of the agency to deliver form the duties as agent in compliance with the up to the said general agent, or his repreinstructions of the general agent through his proper representatives, and at the end of the sentative, all moneys, policies, books, and agency by any cause whatever shall deliver up property due from him or in his possession, to the said general agent or his authorized and it was further provided that, if he should representatives all moneys, policies, books, and do so, and reimburse said general agent for property due from or in his possession:

"Now, therefore, if the said J. N. Jaggers all extra expense occasioned by any delinshall promptly pay to the said general agent the quency or failure to comply with the foremoneys received from time to time, and shall going conditions, the obligation should be well and truly perform all and singular the du- void. It does not appear to contemplate that ties as agent of said general agent, in accordance with the instructions of said general agent, the agent should be bound to the payment of as given or made known by him or his proper losses occurring on policies issued on prorepresentatives, for and during which time he hibited risks by him, and does not, in the opinofficiates as agent, and shall deliver all property ion of the court, bind him to any such paywhich he may receive and hold as agent to his successors in office, or to such person as the ment. general agent or his authorized representative The complaint therefore did not state a may direct, and reimburse said general agent cause of action, and the court committed no for all extra expense occasioned by any delinquency or failure to comply with the foregoing error in sustaining the demurrer. conditions, then this obligation shall be null The judgment is affirmed. and void; otherwise to remain in full force and virtue."

The appellees interposed a demurrer to the complaint, which was sustained, and the CONWAY v. MILLER COUNTY HIGHWAY complaint amended, and the demurrer again AND BRIDGE DIST. (No. 207.) renewed. It was again sustained, and appel- (Supreme Court of Arkansas. Nov. 1, 1915.) lant standing upon his complaint, it was dis

1. STATUTES 205–CONSTRUCTION. missed, from which judgment it prosecutes

A statute should be considered as a whole this appeal.

in construing it. Cockrill & Armistead, of Little Rock, and Cent. Dig. & 282; Dec. Dig. Om 205.)

[Ed. Note.-For_other cases, see Statutes, H. L. Ponder, of Walnut Ridge, for appellant. J. N. Beakley, W. E. Beloate, and 0. c. 2. HIGHWAYS Ow90—UNITY OF IMPROVEMENT

-STATUTE. Blackford, all of Walnut Ridge, for appellees.

Acts 1915, p. 617, is entitled "An act to

lay off and establish a part of Miller county KIRBY, J. (after stating the facts as into a public highway and bridge district for

the construction of public highways from the above). [1] The allegations of the complaint city of Texarkana to various localities in the show that the bond was executed by the local territory hereinafter described, and for the conagent, Jaggers, to the general agent of ap- struction of a public bridge in connection with pellant insurance company, for its benefit, such highways over and across the Red river,

* and to organize and incorporate a and, although it was not disclosed therein as highway and bridge district and provide for the principal or person for whose benefit the levying assessments and collecting the same,

w For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« 이전계속 »