Other errors are assigned and are discussed by learned counsel for appellants, but we do not think these asisgnments of error are of sufficient importance to require discussion by us.

It is the opinion of the majority that no error was committed, and the judgment is therefore affirmed.

MCADAMS et al. v. HENLEY. (No. 77.) (Supreme Court of Arkansas. June 29, 1925.) 1. Courts 92-Former Supreme Court decisions held decisive as to receipt of number of votes required to adopt constitutional amendment, though validity thereof was not directly involved.

Former decisions of Supreme Court held decisive as to receipt of requisite number of votes for adoption of Const. Amend. 12, prohibiting passage of local laws by Legislature, though validity thereof was not directly involved.

at same place or time. 6. Constitutional law ~~7 Constitutional amendment held invalid as not entered on journals of both houses of Legislature.

Omission of House amendments to Senate resolution, proposing constitutional amendment No. 12, prohibiting passage of local laws by Legislature, from Senate journals, held to invalidate amendment for noncompliance with Const. art. 19, § 22, requiring that proposal be entered on journals with yeas and nays.

7. Constitutional law 70(3)-Questions of policy not for courts, which can only pass on constitutionality of law or whether constitutional amendment was approved in constitutional manner.

Questions of policy are not for courts, which can only decide whether constitutional limita

tions are infringed on by statute, or whether proposed constitutional amendment has been approved by people in manner prescribed by Constitution.

2. Evidence

ment of cost of building new bridge over small void as impairing vested rights or authorizing nonnavigable river crossed by road, held not

3. Constitutional law 7-No presumption that two houses of Legislature agreed on proposed constitutional amendment, where amendment of Senate resolution by lower House was never entered on Senate journals.

In determining whether Const. Amend. 12, prohibiting passage of local laws by Legislature, was proposed by General Assembly by entry on journals with yeas and nays, as required by Const. art. 19, § 22, there is no presumption, as in dealing with validity or construction of statute, that recitals of House Journal as to adoption of amendment, never entered on Senate Journal, on first and second reading, followed by adoption of Senate resolution, meant that amendment was receded from and original resolution finally adopted, or that two houses agreed on same proposal.

4. Constitutional law 6-Constitution can be amended only in accordance with rules prescribed thereby.

Constitution is supreme and paramount law, which can be amended only in accordance with rules thereby prescribed.

those for which tax was levied, in violation of

Const. art. 16, § 11; statute constituting legislative determination, which Supreme Court cannot set aside unless demonstrably arbitrary and unwarranted, that bridge is not independent project, but part of construction of road. 9. Highways 122-Constitutional prohibition of use of tax moneys for other purpose than that for which tax was levied inapplicable to local assessments.

Const. art. 16, § 11, prohibiting use of tax moneys for any other purpose than that for which tax was levied, applies only to general taxation, not to local assessments.

Wood and Humphreys, JJ., dissenting.

Appeal from Craighead Chancery Court; J. M. Futrell, Chancellor.

Suit by A. W. Henley against H. H. McAdams and others. Decree for plaintiff, and defendants appeal. Reversed and remanded,

with directions.

Horace Sloan, of Jonesboro, for appellants. Arthur L. Adams, of Jonesboro, for ap

The authorities bearing on an interpretation of the language in other Constitutions, identical with, or similar to, that found in the Constitution of this state, concerning the method of proposing amendments, are not harmonious, nor are they very abundant. There are many decisions referring to the question of legal methods of proposing and adopting constitutional amendments, but, when we come down to the very question involved in this case, the authorities are not numerous, and in several of the states the decisions of the courts of last resort are hopelessly conflicting. In a note to a case in 9 Ann. Cas. we find, on page 587, the following statement of the law:

"A distinction has been drawn between the rules governing acts proposing constitutional amendments and those applying to ordinary statutes which are assailed as not having been constitutionally enacted. Where it is provided in the Constitution that any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if twothirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their journals with the yeas and nays taken thereon, and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people,' etc., it is held that the journal must show the amendment and vote thereon, and that the court will look to the journals to ascertain if the proper steps were taken. It is further held that the journal is the record from which it must appear that the amendment has been enacted in the form required by the Constitution, and that the rule whereby a statute which has been enrolled, authenticated, and deposited with the Secretary of State cannot be impeached by reference to the legislative journals has no application."

The cases holding that this constitutional requirement is satisfied merely by an entry which sufficiently identifies the proposal by reference to title, or otherwise, seem to be in the majority. Prohibitory Amendment Cases, 24 Kan. 700; Worman v Hagen, 78 Md. 152, 27 A. 616, 21 L. R. A. 716; Oakland Paving Co. v. Tompkins, 72 Cal. 5, 12 P. 801, 1 Am. St. Rep. 17; People v. Sours, 31 Colo. 369, 74 P. 167, 102 Am. St. Rep. 34; State v. Herried, 10 S. D. 109, 72 N. W. 93; Postel v.

this subject. On the other hand, there are cases holding that, where the language of the Constitution requires that a proposed amendment shall be "entered on the journals," this language means that it must be entered in extenso and not merely by ref erence to title, or otherwise, and that an omission to strictly comply with the provision invalidates the proposal. Koehler V. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; Bailey v. Brookhart, 113 Iowa, 250, 84 N. W 1064; People v. Loomis, 135 Mich. 556, 98 N. W. 262, 3 Ann. Cas. 751; Durfree v, Harper, 22 Mont. 354, 56 P. 582; In re Senate File, 25 Neb. 864, 41 N. W. 981. It is thus seen that the two conflicting rules of interpretation are supported by respectable authority, and we feel at liberty to adopt that line of authority which is consistent with our own conception of the better reasoning on the subject, and that which appears to us to have been the intention of the framers of this provision of our Constitution, when read and considered in connection with other provisions thereof.

The decision of the Supreme Court of Kansas, in the Prohibitory Amendment Cases, supra, is generally cited as the chief exponent of the doctrine that a mere identifying reference on the journals of the General Assembly is sufficient to satisfy the requirement that the proposed amendment must be "entered on the journals." The opinion in that case was written by Judge Brewer, and for that reason, if for no other, commands the utmost respect. The opinion, however, is much weakened by the fact that it is out of line wth the almost unanimous authority in holding that a provision of this kind is not mandatory but merely directory. In fact, it was not decided in that case by the distinguished jurist that the words, "shall be entered on the journal," meant that a mere identifying reference to the amendment could be entered on the journal and was sufficient compliance with that language, but he held that the requirement was merely directory, and that the will of the people, as expressed at the ballot box, could not be overthrown by a failure on the part of the Legislature or of its agents to enter the proposed amendment on the journals. He propounds the inquiry, "Is the failure to enter this amendment at length on the journals fatal?" and answers it by stating that the "two important, vital elements in any constitutional amendment are the assent of twothirds of the Legislature, and a majority of the popular vote," and that a failure to comply with the provision with reference to making the proper record of the legislative proceeding does not defeat the amendment, which has in fact been proposed by two

by the votes of a majority of the people. Notwithstanding the learning and ability of that great jurist who wrote that opinion, it is so far out of line with all of the other adjudged cases, on the question upon which the decision rests, that we must discard it as a controlling authority in interpreting the meaning of the language of our Constitution. The Supreme Court of Wisconsin, in the case of Postel v. Marcus, supra, first decided that the requirement for entering a proposed amendment on the journal of each house meant that it should be entered in extenso and not merely by reference to title or otherwise. The opinion was written by Judge Marshall, but on rehearing the decision was changed and, it was held that an identifying reference on the journals was sufficient. It appears that the original decision of the court resulted in invalidating about twentyfive important constitutional amendments reaching back for many years, and that this fact had its influence on the court in changing the opinion. We feel at liberty in thus commenting on the decision from the fact that this situation in which the court found itself is fully disclosed in the opinions on rehearing, not only that of the Chief Justice, who wrote the additional opinion, but also the dissenting opinion of Judge Marshall and the concurring opinion of another of the Justices.

It will be observed that the case of Koehler v. Hill, supra (Supreme Court of Iowa), and the case of Worman v. Hagen, supra, which are conflicting on this question, were both reviewed by this court in Rice v. Palmer, supra, and the doctrine of the Maryland case was condemned, and the doctrine of the Iowa case approved. It is true the discussion arose over another point, but it related to the question of the adoption of constitutional amendments, and the opinion of our court in Rice v. Palmer shows that the attitude of the Maryland court on that subject did not meet with the approval of this court. The language in the Constitution of the state of Iowa with respect to amendments is almost identical with our Constitution as to the provision requiring the entry of proposed amendments on the journals of the General Assembly. The Supreme Court of that state in Koehler v. Hill, supra, said:

"The evident intent of the Constitution is that the proposed amendment should be entered at length on the journal, or, at least, so entered as to leave no reasonable doubt as to its provisions. This must be so, or the entering of the yeas and nays can be as readily dispensed with as entering the resolution, and yet this is the constitutional mode of ascertaining whether a majority of the members elected to each house agreed to the amendment. ** It seems to us that a simple entering on the journal of the title or object of a proposed amendment does not accomplish the intent of the Constitution, and the thought that this must be so is much strengthened when regard is had to all the provisions of the Constitution.

* *

That instrument provides that upon the final passage of a bill the yeas and nays must be taken, and the same entered upon the journal. This necessitates the entering on the journal of the title or substance of the bill to be voted intended in relation to a constitutional amendupon. This being so, if no more than this was ment, the provision as to entering it on the journal is unnecessary and meaningless. There is no provision requiring a bill to be entered on the journal, but the Constitution does require that a proposed amendment thereto 'shall be entered' on the journals 'with the yeas and shall be spread at length thereon, and the yeas nays.' This must mean that the amendment and nays set out in the journal in full or at length. No distinction between the two can possibly be drawn."

The reasoning of the court in that case precisely fits the present situation under our own Constitution. The Constitution of 1874 (art. 5, § 12) provides:

66 # ** Each house shall keep a journal of its proceedings; and from time to time publish the same, except such parts as require secrecy; and the yeas and nays on any question shall, at the desire of any five members, be entered on the journals."

The only requirements in the Constitution with respect to what shall be entered on the journals is the one under consideration with reference to amendments, and the one in section 22, art. 5, that "no bill shall become a law unless on its final passage the vote to 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;" and the one in section 15, art. 6, that, in case the Governor vetoes a bill, "he shall return it, with his objections, to the house in which it originated, which house shall enter the objections at large upon their journal and proceed to reconsider it."

It was necessarily assumed by the framers of the Constitution that, so far as concerned the enactment of statutes, the journals should contain some reference to the passage of bills through the two houses, so as to identify them and show the course of the proceedings-this, without any special requirement to that effect. If the framers of the Constitution had intended that nothing more than that was to be required concerning amendments to the Constitution, it would have been unnecessary to put in the additional requirement that amendments shall be "entered on the journals." It will also be observed that the requirement of the Constitution is not merely that the proceeding in regard to proposed amendments shall be entered on the journals-not merely a history of the passage of the proposal through the houses be entered-but it provides that the amendment itself shall be entered on the rec

ords.

The precise language is that "such proposed amendments shall be entered on the journals with the yeas and nays." It is our