2. That question has been determined adversely to relator by the decision of this court in Byers v. Territory, supra. 3. If section 17 of the enabling act as amended March 4, 1907, means as contended by relator, it was modified by section 2, art. 7, of the state Constitution; for, in case of conflict between a provision of the Constitution of this state as framed at the time of its admission and of the enabling act, the latter falls. Vaughan v. Williams, 28 Fed. Cas. p. 1115, No. 16,903, 3 McLean, 530, 3 West Law Journal, 65, 8 Law Rep. 375; Romine v. State et al., 7 Wash. 215, 34 Pac. S. W. 1130, 31 L. R. A. 815; Atwater v. Hassett et al. (decided at September, A. D. 1910 Term) 111 Pac. 802. But said sections 17 of the enabling act and 26 of the Schedule seem to harmonize (Montana v. Rice, 204 U. 4. The relator has not attempted to point out in what manner he has been deprived of any rights guaranteed to him by the sixth amendment to the federal Constitution. Hence that ground, under the rules of this court, is waived. Further, that said amendment does not limit the powers of the states or their agencies has been many times held of May 18, 1908, supra, provides: "The Crim- | Court of Appeals; the court pronouncing the inal Court of Appeals shall have exclusive final appellate judgment. appellate jurisdiction in all criminal cases appealed from county and district courts in this state. If any cause appealed to the Criminal Court of Appeals, in which the construction of the Constitution of the state, or of the United States, or any act of Congress is brought in question, the said Criminal Court of Appeals shall certify to the Supreme Court of the state the question involving the construction of the Constitution of this state or of the United States, or any act of Congress, for final determination of the question so certified. Thereupon all further proceedings in said cause in the Criminal Court of Appeals shall await the decision of the Su-924; Edwards v. Lesueur, 132 Mo. 410, 33 preme Court upon such question. Upon the final decision of such question by the Supreme Court, said Supreme Court shall certify its decision on such question to the Criminal Court of Appeals, and said decision of such question by the Supreme Court shall govern | S. 291, 27 Sup. Ct. 281, 51 L. Ed. 490) with said Criminal Court of Appeals. The Su- the construction given to section 2, art. 7, preme Court shall give precedence to all ques- supra. tions certified to it by the Criminal Court of Appeals under this section." In Byers v. Territory, 24 Okl. 811, 105 Pac. 998, section 9 of the act of May 18, 1908, supra, in connection with other provisions thereof, was construed, wherein it was held to have been intended by said act to confer jurisdiction upon the Criminal Court of Appeals in all criminal cases not only appealed thereafter from judg-by the Supreme Court of the United States. ments in the district and county courts, but Ex parte Spies, 123 U. S. 131, 8 Sup. Ct. 22, also of all criminal cases then pending in the 31 L. Ed. 80; Eilenbecker v. Dist. Court, 134 Supreme Court of the state, including pro- U. S. 31, 10 Sup. Ct. 424, 33 L. Ed. 801; ceedings transferred from the Supreme Court Brown v. New Jersey, 175 U. S. 172, 20 Sup. of the territory after the erection of the Ct. 77, 44 L. Ed. 119; Maxwell v. Dow, 176 state. We see no sufficient reason for revis-U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597; ing or changing that construction. It follows that after the passage of the act of May 18, 1908, a Criminal Court of Appeals with exclusive appellate jurisdiction in all criminal cases was established by law; for it could not be said that the procedure for the certifying of such questions by said court to the Supreme Court was the exercise of appellate jurisdiction as the term is used in section 2, art. 7, supra. There was no revising the action of any inferior court and remanding the cause for the rendition and execution of the proper judgment. The certifying of such questions was that there might be harmony between the two appellate courts as to the construction of the state Constitution and matters involving federal questions. This could have been provided for solely on the assumption that the judgment of the Criminal Court of Appeals thereon would so far as state tribunals were concerned be final. This being so, if a federal question was involved in such cases, to which court would a writ of error run from the Supreme Court of the United States? It seems clear that it would be the Criminal West v. Louisiana, 194 U. S. 258, 24 Sup. Ct. The writ is quashed and the prisoner remanded to the custody of the state warden. All the Justices concur. (28 Okl. 94) ATCHISON, T. & S. F. RY. CO. v. STATE. (Supreme Court of Oklahoma. Jan. 24, 1911.) (Syllabus by the Court.) 1. STATUTES (§ 283*) - PASSAGE-EVIDENCERECORD. When an enrolled bill has been signed by the Speaker of the House and by the President of the Senate, respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not comthat the act so authenticated, approved, and petent to show from the journals of the House deposited did not pass in the form in which it was signed by the presiding officers and ap-thorizing the levy for common school purproved by the Governor. [Ed. Note.-For other cases. see Statutes, Cent. Dig. § 382; Dec. Dig. § 283.*] 2. TAXATION (§ 23*)-LEVY-MUNICIPAL PURPOSES-LEVY FOR COMMON SCHOOL PURPOSE. That portion of section 2, art. 7, c. 38, Sess. Laws 1909. being part of an act entitled. "An act for raising and collecting revenues,' approved March 10, 1909, which levies annually one-fourth of one mill ad valorem tax for common school purposes, does not violate section 20, art. 10, of the Constitution. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 56; Dec. Dig. § 23.*] poses; that that provision never received the sanction of the members of the Legislature; and that such facts are disclosed by the journals of the House and Senate. Whether a court can look to the journals of either branch of the Legislature, or of both, to impeach the enrolled bill in determining whether or not it was passed in conformity with constitutional provisions, and in determining whether all the provisions contained in the enrolled bill signed by the presiding officers of the two branches of the Legislature and Error from District Court, Logan County; approved by the Governor were contained in A. H. Huston, Judge. the bill as adopted by the Legislature, is a Submission of controversy between the At-question upon which the decided cases from chison, Topeka & Santa Fé Railway Company and the State. There was a judgment for the state, and the railway company brings error. Affirmed. Cottingham & Bledsoe, for plaintiff in error. Charles West, Atty. Gen., and C. J. Davenport, for the State. HAYES, J. For convenience, plaintiff in error will be referred to as the railway company and defendant in error as the state. This cause arose in the district court of Logan county upon a submitted controversy in lieu of an action. The railway company seeks to prevent the state from collecting a tax levied against its property for common school purposes under a provision of an act of the Legislature approved March 10, 1909. Sess. Laws 1909, p. 600. Section 2, art. 7, of that act provides in part as follows: "There is hereby levied annually an ad valorem tax upon all property in this state which may be subject to taxation upon such basis, a tax sufficient in addition to the income from all other sources, to pay the expenses of the state government for each fiscal year ending on the thirtieth day of June, including one-fourth of one mill for common school purposes to be levied, collected and distributed as other school money. (Italics are ours.) the various states of the Union are in hopeless conflict, and there are many cases supporting respectively the affirmative and negative of the proposition. Among those cases holding that the journal may be looked to for the purpose of impeaching the enrolled bill are the following: Jones v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; Burr & Co. v. Ross & Leitch, 19 Ark. 250; Vinsant v. Knox, 27 Ark. 266; Webster v. City of Little Rock, 44 Ark. 536; State v. Brown, 20 Fla. 407; State ex rel. Boyd et al. v. Deal, 24 Fla. 293, 4 South. 899, 12 Am. St. Rep. 204; Butler v. State, 89 Ga. 821, 15 S. E. 763; Spangler v. Jacoby, 14 Ill. 297, 58 Am. Dec. 571; People ex rel. Barnes v. Starne, 35 Ill. 121, 85 Am. Dec. 348; Cohn v. Kingsley, 5 Idaho, 416, 49 Pac. 985, 38 L. R. A. 74; Koehler & Lange v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; State v.. Andrews, 64 Kan. 474, 67 Pac. 870; State ex rel. v. Robertson, 41 Kan. 200, 21 Pac. 382; State ex rel. v. Francis, 26 Kan. 724; Haynes v. Heller, 12 Kan. 382; Mynning v. Detroit, Lansing & Northern R. Co., 59 Mich. 257, 26 N. W. 514; People v. McElroy, 72 Mich. 446, 40 N. W. 750, 2 L. R. A. 609; Board of Supervisors v. Heenan, 2 Minn. 330 (Gil. 281); State v. City of Hastings, 24 Minn. 78; Miesen v. Canfield, 64 Minn. 513, 67 N. W. 632; Hull v. Miller, 4 Neb. 503; The judgment of the trial court was in State v. McClelland, 18 Neb. 236, 25 N. W. 77, favor of the state. The facts agreed upon in 53 Am. Rep. 814; State ex rel. Casper v. the submitted controversy present for deter- Moore, 37 Neb. 13, 55 N. W. 299; State ex mination the following three questions: First. rel. Wahoo Waterworks Co. v. City of Wahoo Did the act as passed by the Legislature in- et al., 62 Neb. 40, 86 N. W. 923; Opinion of clude the foregoing italicized provision? Sec- Justices, 35 N. H. 579; Opinion of Justices, ond. Will the courts look beyond the enroll-52 N. H. 622; State, etc., v. Moffitt, 5 Ohio, ed bill signed by the presiding officers of the 359; Fordyce v. Godman, 20 Ohio St. 1; two houses of the Legislature, and approved Mumford v. Sewall, 11 Or. 67, 4 Pac. 585, 50 by the Governor, to determine whether such Am. Rep. 462; State v. Rogers, 22 Or. 349, bill was in fact passed by the Legislature? 30 Pac. 74; State v. McConnell, 3 Lea Third. Does said provision of the act violate (Tenn.) 332; Gaines v. Horrigan, 4 Lea section 20 of article 10 of the Constitution? (Tenn.) 608; Brewer v. Huntingdon, 86 Tenn. The first and second of these questions will 732, 9 S. W. 166; Ritchie v. Richards et al., be considered together. 14 Utah, 345, 47 Pac. 670; Wise v. Bigger et The railway company contends that said al., 79 Va. 269; Meracle v. Down, 64 Wis. act (for convenience hereinafter referred to 323, 25 N. W. 412; Brown v. Nash, 1 Wyo. as House Bill No. 168), when adopted by the S5; Osburn et al. v. Staley, 5 W. Va. 85, 13 Legislature, did not contain the provision au-Am. Rep. 640. * must now be doubted whether they speak correctly the condition of the authorities up edition of Sutherland on Statutory Construction, at page 72, it is said: "It is no longer true that 'in a large majority of the states' the courts have held that the enrolled act may be impeached by a resort to the journals. A comparison will show that the courts are now about equally divided on the question. The current of judicial decision in the last ten years has been strongly against the right of the courts to go back of the enrolled act. Undoubtedly, the decision of the Supreme Court of the United States in Field v. Clark [143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294] has had much to do in creating and augmenting this current, but it may also be due to the greater simplicity, certainty, and reasonableness of the doctrine, which holds the enrolled act to be conclusive. Many courts and judges, while feeling compelled to follow former decisions holding that the enrolled act may be impeached by the journals, have done so reluctantly and have expressed doubts as to the validity of the doctrine, and in many cases, as will ap At common law the rule prevailed that the enrolled bill is conclusive and may not be impeached by resort to the legislative jour-on this question at this time; and in the last nals. Rex v. Arundel, 80 Eng. Rep. (full reprint) 258; Edinburgh Ry. Co. v. Wauchope, 8 Cl. & F. 710; Lon. & Can. L. & A. Co. v. R. M. of Morris, 7 Manitoba, 128. And the same rule is adopted in the following state cases: Graves v. Alsap, 1 Ariz. 274, 25 Pac. 836; Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93; People v. Burt, 43 Cal. 560; Eld v. Gorham, 20 Conn. 8; State et al. v. Savings Bank, 79 Conn. 141, 64 Atl. 5; Territory v. O'Connor, 5 Dak. 397, 41 N. W. 746, 3 L. R. A. 355; State ex rel. McVey v. Burris, 4 Pennewill (Del.) 3, 49 Atl. 930; Evans v. Browne, 30 Ind. 514, 95 Am. Dec. 710; State v. Boice, 140 Ind. 506, 39 N. E. 64, 40 N. E. 113; Lewis v. State, 148 Ind. 346, 47 N. E. 675; Lafferty v. Huffman, 99 Ky. 80, 35 S. W. 123, 32 L. R. A. 203; Owensboro & Nashville Ry. Co. v. Barclay's Adm'r, 102 Ky. 16, 43 S. W. 177; Norman v. Kentucky Board of Managers, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556; Louisiana State Lottery Co. v. Richoux, 23 La. Ann. 743, 8 Am. Rep. 602; Weeks v. Smith et al., 81 Me. 538, 18 Atl. 325; Green v. Weller et al., 32 Miss. 650;| pear in the following sections, have qualified Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825; Pacific R. R. v. Governor, 23 Mo. 363, 66 Am. Dec. 673; State v. Swift, 10 Nev. 186, 21 Am. Rep. 721; State v. Howell, 26 Nev. 93, 64 Pac. 466; Pangborn et al. v. Young, 32 N. J. Law, 29; Ewing v. Trenton, 57 N. J. Law, 318, 31 Atl. 223; People v. Devlin, 33 N. Y. 269, 88 Am. Dec. 377; People v. Marlborough Highway Com'rs, 54 N. Y. 276, 13 Am. Rep. 581; Brodnax et al. v. Groom et al., 64 N. C. 244; Power v. Kitching, 10 N. D. 254, 86 N. W. 737, 88 Am. St. Rep. 691; Speer v. Plank Road Co., 22 Pa. 376; Commonwealth v. Martin, 107 Pa. 185; State ex rel. Hoover v. Chester, 39 S. C. 307, 17 S. E. 752; Narregang v. Brown County et al., 14 S. D. 357, 85 N. W. 602; State ex rel. Lavin et al. v. Bacon et al., 14 S. D. 394, 85 N. W. 605; Central Ry. Co. v. Hearne, 32 Tex. 547; Williams v. Taylor, 83 Tex. 667, 19 S. W. 156; Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000; In re Welman, 20 Vt. 653, Fed. Cas. No. 17,407; State ex rel. Reed v. Jones, 6 Wash. 452, 34 Pac. 201, 23 L. R. A. 340. We have not cited above all the cases that support either of the rules, but have attempted to give only a sufficient number to indicate the extent to which both rules are supported by respectable authority. It has been asserted by some of the text-writers, as well as by some courts in the decided cases, that the weight of authority, numerically speaking, supports the rule that, where the journal contains matters affirmatively impeaching the enrolled bill, it must prevail. Black on Interpretation of Laws, p. 225. A similar declaration is found in the first edition of Sutherland on Statutory Construction. However correct these statements may and restricted it in important particulars." * # That is to say, that an act, actually and bona fide assented to in both houses, authenticated and deposited with the Secretary of State, should be conclusive of the law, in the breasts of the judges." Other cases in which courts have made similar criticism of this rule, which they felt bound by precedent to follow, are: People v. Starne, supra, State v. Andrews, supra, and State v. Moore, supra. In State v. Chester, 39 S. C. 307, 17 S. E. 752, the court reversed the rule, notwithstanding it had been twice declared and followed in that jurisdiction in the cases of State v. Platt, 2 S. C. 150, 16 Am. Rep. 647, and State v. Hagood, 13 S. C. 46; and in doing so the court used the following language: "Therefore, however unpleasant it may be to reverse previous decisions of this court, still, after full and mature consideration, we feel it to be a duty we owe the state that the case of State v. Platt, supra, should be and is hereby overruled, and, as the case of State v. Hagood, supra, was really decided upon the authority of Platt's Case, it follows necessarily that the case of Hagood must fall when the foundation upon which it rests is taken away. We announce that the true rule is that, when an act has been duly signed by the presiding officers of the General Assembly, in open session in the senate house, approved by the Governor of the state, and duly deposited in the office of the Secretary of State, it is sufficient evidence, nothing to the contrary appearing upon its face, that it passed the General Assembly, and that it is not competent either by the journals of the two Houses, or either of them, or by any other evidence, to impeach such an act." The provision of the Constitution of this state relative to the journals of each House of the Legislature are as follows: By section 30, art. 5, it is provided that: "Each House shall keep a journal of its proceedings and from time to time publish the same. The yeas and nays of the members of either House on any question, at the desire of onefifteenth of those present shall be entered upon its journal." Section 31 of the same article requires that in all elections made by the Legislature, except for officers and employés thereof, the members thereof shall vote yea or nay, and each vote shall be entered upon the journal. And section 34 provides that: "Every bill shall be read on three different days in each House, and no bill shall become a law unless, on its final passage, it be read at length, and no law shall be passed unless upon a vote of a majority of all the members elected to each House in favor of such law, and the question, upon final passage, shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal." It will be observed from the foregoing provisions that the only specific requirements as to what shall be entered upon the journal tions other than for officers and employés of either House, and the yeas and nays shall be taken upon the final passage of all measures and shall be entered upon the journal. This latter requirement is made essential to the passage of the act; and likewise the yea and nay vote must be entered upon the journal, if it be voted to dispense with the reading at length of any act before the signing of same by the presiding officer of either House, in the presence of the House, as required by section 35. It is the duty of each House to keep a record of its proceedings and from time to time publish the same; but, except as just mentioned, what proceedings shall be recorded in the journal, the manner of recording same, and the extent of their fullness, is left by the Constitution to the discretion of the legislative bodies, to be controlled by rule respectively of those bodies, or by statute. It is not required by any provision of the Constitution that the contents of any bill, proposed, rejected, or adopted, shall be set out in the journal, or that the contents of any amendment of any bill shall be stated in full or in substance in the journal; and a record of any such bill or amendment thereto may be kept by reference in the journal to the title of such bill or amendment or to its number. The question now under consideration was first directly presented to the Supreme Court of the United States for determination in Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294. In that case the validity of an act of Congress was questioned, upon the ground that there had been omitted from the engrossed act, as attested by the Vice President and the Speaker of the House, as approved by the President and as deposited with the Secretary of State, a section that was contained in the act when it passed the two Houses of Congress, and it was sought to establish this fact by reference to the journals of the two Houses of Congress, but it was held that the act could not be impeached in this way. Section 5, art. 1, of the federal Constitution provides that: "Each House shall keep a journal of its proceedings and from time to time publish the same, except such parts as may in their judgments require secrecy, and the yeas and nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the journal." The court, speaking through Mr. Justice Harlan of the relative weight that shall be given to the journal thus required to be kept by the Houses and to the engrossed act, said: "The signing by the Speaker of the House of Representatives, and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two Houses of such bill as one that has passed Congress. It is a declaration by the two Houses, through their presiding officers, to the President, that a bill, thus attested, has received, in due form, the government, and that it is delivered to him | ficers of the two Houses of Congress, and the in obedience to the constitutional requirement approval of the President, is conclusive evithat all bills which pass Congress shall be dence that it was passed by Congress, accordpresented to him. And when a bill, thus at- ing to the forms of the Constitution, would be tested, receives his approval, and is deposited far less than those that would certainly rein the public archives, its authentication as sult from a rule making the validity of cona bill that has passed Congress should be gressional enactments depend upon the mandeemed complete and unimpeachable. As the ner in which the journals of the respective President has no authority to approve a bill Houses are kept by the subordinate officers not passed by Congress, an enrolled act in charged with the duty of keeping them." the custody of the Secretary of State, and And to the same point Mr. Justice Sawyer, having the official attestations of the Speak- in Sherman v. Story, supra, said: "Better, er of the House of Representatives, of the far better, that a provision should occasionPresident of the Senate, and of the President ally find its way into the statute through of the United States, carries on its face a mistake, or even fraud, than that every act, solemn assurance by the legislative and ex- state and national, should at any and all ecutive departments of the government, times be liable to be put in issue and imcharged, respectively, with the duty of enact-peached by the journals, loose papers of the ing and executing the laws, that it was passed by Congress. The respect due to co-equal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated, leaving the courts to determine, when the question properly arises, whether the act, so authenticated, is in conformity with the Constitution." The doctrine of the foregoing case has been either approved or followed in the following cases from the Supreme Court: United States v. Ballin, 144 U. S. 3, 12 Sup. Ct. 507, 36 L. Ed. 321; Lyons v. Woods, 153 U. S. 662, 14 Sup. Ct. 959, 38 L. Ed. 854; Harwood v. Wentworth, 162 U. S. 558, 16 Sup. Ct. 890, 40 L. Ed. 1069. Referring to the dangers which may attend the application of this rule and the abuses to which it might be subjected, the court, in Field v. Clark, said: "It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself-nothing to the contrary appearing upon its face-that it passed Congress. But the contention is that it cannot be regarded as a law of the United States if the journal of either House fails to show that it passed in the precise form in which it was signed by the presiding officers of the two Houses, and approved by the President. It is said that, under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy, to which the presiding officers, the committees on enrolled bills, and the clerks of the two Houses must necessarily be parties; all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a co-ordinate branch of the government. The evils that may result from the recognition of the principle that an enrolled act, in the custody of the Secretary of State, Legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable." We do not attempt to set out all the reasoning of the courts that has been given in support of the rule in Field v. Clark, nor of those courts that adhere to the opposite rule; for no useful purpose could be subserved thereby, and we can add nothing to the force of the argument that, has been adduced to support either of the rules, or to show their respective weakness. The entire field on both sides has been thoroughly covered by the authorities cited above. To our minds the reasoning offered in support of the rule in Field v. Clark is satisfactory, and the rule adopted in that case appears to us to be the sounder and better rule. In that case, however, the court specifically reserved from consideration and decision what the effect of matters expressly required by the Constitution to be entered on the journal, where the same are in conflict with the enrolled act, would have upon the validity of the act. The conflict between the journal and the authenticated act here complained of is not as to matters which, by the Constitution of this state, are expressly required to be entered on the journal. It is not contended upon the final passage of House Bill No. 168 the yeas and nays were not taken or not entered upon the journal. The journal shows that such was done. It is contended only that the journal shows that the enrolled act contains a provision that was not contained in the act when it was voted upon by both Houses. As before stated, there is no constitutional provision specifically requiring that the journal shall show the contents of an act when it is passed; and it is not contended in the instant case that the journal shows the entire contents of House Bill No. 168, but that sufficient is shown to establish that it does not contain the provision involved. The effect of failure to enter the names of those voting upon the final passage of a bill, where such record is required by constitutional provision to be made, was considered in State et al. V. Erick |