author: MR COMMISSIONER CALLAWAY Pee CueiaM.

text:
    STATE Respondent, v. BROWN, Appellant.
    (No. 1,989.)
    (Submitted November 18, 1903.
    Decided November 30, 1903.)

      Constitution — Statutes—Sufficiency of Title — Came Laws.
    Held, that Senate Bill No. 29 (Chapter 58, Laws oí 1903), amending the game laws, was void, as in conflict with Constitution, Article V, Section 2, requiring that the subject of bills shall be clearly expressed in their titles.

      Appeal from District Oourt, Lewis and 'Glarke County*; Henry G. Smith, Judge.

    Wilton Gr. Beown was prosecuted under Senate Bill No. 29 (Laws of 1903, Chapter 58) for unlawfully shooting and killing a turtle dove, was found guilty, and judgment was rendered against him, from] which judgment he appeals.
    Reversed.

      Mr. Henry R. Thompson, for Appellant.
    (a) The court erred in overruling the demurrer of the defendant to the complaint for the'following reasons: (1) The court was without jurisdiction to try said cause, and (2) the Act of the legislative assembly under which said complaint was made is unconstitutional, for the reasons set forth in the demurrer. (b) Appellant claims that said Act is unconstitutional for the further reason: that it has no title, as prescribed, by the constitution.
    The following are the constitutional provisions relating to the procedure necessary to enact a bill into a law: 1. A quorum must be present in the house in which it is introduced. (Const. Mont. Art. V, Sec. 10.) 2. It ¡may be introduced in either house, with one exception. (Const. Mont. Art. Y, Sec. 32.) 3. It must have a proper enacting clause. (Const. Mont. Art. V, See. 20.) 4. It must be referred to a committee. (Const. Mont. Art. Y, Sec. 22.) 5. It must be returned therefrom, and printed. (Const. Mont. Art. V, Sec. 22.) 6. With two exceptions it must not contain more than one subject which must be clearly expressed in the title. (Const. Mont. Art. Y, See. 23.) 7. It must not be altered or amended on its passage so> as to change its original purpose. (Cont. Mont. Art. Y, Sec. 19.) 8. It must be passed byl ai majority Vote of all the members present in each house. (Const. Mont. Art. V, Sec. 24.) 9. On its final passage the vote must be taken by ayes and noes. (Const. Mont. Art. Y. Sec. 24.) 10. On its final passage the names of those voting miust be recorded in the journal. (Const. Mont. Art. Y, Sec. 24.) 11. It must not be a law which comes within the classes mentioned in Const. Mont. Art. Y, Sec. 26. 12. After the final passage of the bill its title must be publicly read. (Const. Mont. Art. Y, Sec. 27.) 13. And immediately there-, after it must be signed by the presiding officer of each house. (Const. Mont. Art. V, Sec. 27.) 14. In the presence of the house over which he presides. (Const. Mont. Art. V, Sec. 27.) 15. And the fact of signing shall be at once entered upon the journal. (Const. Mont. Art. Y, Sec. 27.)
    A question of fad respecting the existence or non-existence of a law is a question of law h> be determined by the Court — not by a jury. (Nesbit v. People, 19 Colo. 441; So. Ottawa v. Per-Icins, 94 U. S'. 200; Walnut v. Wade, 103 U. S'. 683; People v. Allen, 42 N. Y. 378; People v. Mahaney, 13 Mich. 421; State v. Wright, 14 Ore. 365; The Railroad Tax Case, 8 Sawy. 238 (Cal.) ; Blessing v. Galveston, 42 T'ex. 641; Milwaulcee County v. Isenring, 109 Wis. 9; Shermcm v. Story, 30 Cal. 253; Gardner v. Collector, 6 Wall. -509; Post v. Supvrs., 105 TT. S. 667.)
    Courts will take judicial notice of the journals. (Stein v. Beeper, 78 Ala. 517; Edger v. Board, 701 Ind. 331; Blalce v. Bank, 23 Wall. 307; Fosdick v. Perrysburg, 14 Ohio St. 472; Somers v. State, 5 Si D. 321; In re Granger, 56 Neb. 260'; State v. Frank, 60 Neb. 327; Miesen v. Canfield, 64 Minn. 513; Opinion of the Justices, 35 N. II. 579 ; State v. Smith, 44 Ohio St. 348; Ourrie v. So. Pac. Go., 21 Ore. 566; Ritchie v. Richards, 14 Utah, 345; McDonald v. State, 801 Wis. 407.)

      When a statute is copied, from the statutes of another state where it has been judicially construed, the language should be deemed to have been adopted and used in the sense as construed. (McGovney v. Gwillim' (Colo. App.), 65 Pac. 346; Goldman v. Soledo (Ariz.), 68 Pac. 558; Oswaldv. Moran, 8 N. D. Ill; Oass Go. v. Company, 7 N. D. 528; The Railroad Tax Case (Cal.), 8 Sawy. 238-92.) This is equally true with respect to a constitutional provision. (The Railroad Tax Case (Cal.), 8 Sawy. 238, 13 Fed. 722-67.)
    “The manner of the enactment of a statute is of its substance.” (Burritt v. Cornrs, 120 Ill. 322; Weill v. Kenfield, 54 Cal. Ill; Legg v. Annapolis, 42 Md. 203; Burnham v. Morrissey, 14 Gray, 226; Atfy Geríl v. Joy, 55 Mich. 610 ; Supv’rs v. Heenan, 2 Minn. 281; *Green v. Weller, 32 Miss. 650 ; dissenting opinion by Smith, C. J.; concurred in on this point by Fisher, J.; ’"Hunt v. State, 22 Tes. App. 396; State v. Patterson, 98 N. C. 661; Bank v. Comers, 119 N. C. 214.) The same is true of a constitutional amendment. (Durfee v. Harper, 22 Mont. 354; Oakl. Pav. Co. v. Hilton, 69 Cal. 479.)
    “If the resolution is not identical in both houses, or in all the different bodies called upon to ratify it, or, in other words, if the document as finally passed upon is not a true copy of what one or the other body adopted and agreed to, the variance is fatal to the Act.” (Moodyi v. State, 48 Ala. 115, 17 Am. Pep. 28; Smithee v. Garth, 33 Ark. 17; Wolcott v. Wigton/7 Ind. 48; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; State v. Rogers, 10 Nev. 250; State v. Harris, 19 Nev. 223; Ryan v. Lynch, 68 Ill. 160; *Steckert v. K.. Saginaw, 22 Mich. 104; State v. Miller, 45 Mo. 495.)
    Art. I, Sec. 29, of our Constitution, which declares that “the provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise,” was taken from the constitution of California (see Sec. 22 of Art. I), the language being identical. It has been held that this provision applies to each and every section of that instrument, and is equally binding upon each of tbe three departments of the government. (*1894, State v. Tooher, 15 Mont. 8; 1895, State v. French, 17 Mont. 54; 1896, State v. Gamp Sing, 18 Mont. 128; 1896, Palmer v. City of Helena, 19 Mont. 61; 1898, M. G. & G. Go. v. Livingston, 21 Mont. 59; *1899, Durfee v. Harper, 22 Mont. 354; *1903, Mut. L. Ins. Go. v. Martien, 27 Mont. 437; *1903, In re Weston, 28 Mont. 207, 72 P'a,c. 512; 1880, Parle v. Board Education, 55 Oal. 489-91; *1880, Ewing v. Mining Go., 56 Oal. 648-55; 1881, Matter of Maguire, 57 Cal. 604-09; 1884, Ex parte Wotters, 65 Oal. 479-92, 3 Pac. 894; *1886, OaU. Pav. Go. v. Hilton, 69 Oal. 479, 492, 512, 513, 11 Pac. 3; 1890, People v. G. P. B. B. Go., 83 Oal. 393, 23 Pac. 303'; 1890, First Hat’l Bantu v. Superior Court, 83 Oal. 491-94, 24 P'ac. 157; 1890, Davies v. Los Angeles, 86 Cal. 37-50, 24 Pao. 771; 1891, In re Mad. Irr. Dist., 92 Oal. 296-316, 28 Pao. 272, 675; 1892, Dougherty v. Austin, 94 Cal. 601-OS, 28 Pac. 834, 29 Pac. 1092; 1894, Burch v. Golombet, 104 Cal. 347-51, 38 Pac. 45; 1897, Dwyer v. Parker, 115 Cal. 544-48, 47 Pac. 372; 1900, Knight v. Dwyer, 128 Oal. 245-47, 60 Pac. 849; 1900, Pereria v. Wallace, 129 Oal. 397-403, 62 Pae. 61; 1901, People v. Midlender, 132 Oal. 217-19, 64 Pac. 299; 1901, Lewis v. Dunne, 134 Cal. 291-96, 66 Pac. 478.)
    Where the constitution requires certain forms to be observed-in the enactment of a statute, they must be observed to render' the Act valid- — otherwise it is void. (Field v. Clark, 143 TJ. S.; 649, as per Harlan, J., in Board v. Goler, 180 IJ. S. 506; United States v. Ball-in, 144II. S. 1; Gohn v.' Kingsley (Idaho),> 49 Pac. 985; Spangler v. Jacoby, 14 Ill. 297; By.-Go-, v.'Hughes, 38 Ill. 174; Burritt v. Corners, 120 Ill. 322; Norman v; Ky. Board, 93 Ky. 537; Annapolis v. Harwood, 32 Md. 471; Legg v. Annapolis, 42 Md. 203; County Oom’rs v. Burgess, 61 Md. 14; Burnham v. Morrissey, 14 Gray, 226; Att’y Geni v. Joy, 55 Mich. 610; Supv’rs v. Heenan, 2 Minn. 281; State v. Patterson, 98 N. 0-. 661; Bank v. Gom’rs, 119 N. O. 214; Smathers v. Comrs, 125 N. O. 480; Gom’rs v. De Bossett; 129 N. 0. 275; State v. Kiesewetter, 45 Ohio. St. 254; Gurrie
      v. So. Pac. Go., 21 Ore. 566; State v. Hagóod, 13'-S. C, 46; Gaines ■ v. Horrigan, 4 Lea, 60.8 \Hunt. v, State, 22 Tex. App, 396; Ex parte Tipton, 28 Tex. App. 438; Ritchie v. Richards,, 14 Utah,,345.)
    There being no mandatory provisions in the constitution: (a) The failure of the presiding officer to sign a bill will not affect its validity. (Taylor v. Wilson, 17 Kan. 83; Gottrell v. State, 9 Neb. 125; In re Roberts, 5 Colo. 525; Speer v. Pink. Rd. Go., 22 Pa. St. 376.) (b) Signing the bill is. essential to its validity. (Annapolis v. Harwood, 32 Md. 471; Burritt v. Gomfrs, 120 Ill. 322; State v. Kiesewettcr, 45 Ohio. St. 254; State v. Halliday, 63 Ohio. St. 165 ; State v. Platt, 2 S. Cl 150 ; *Hunt v. State, 22 Tex. App. 396, 3 S. W. 233; *Ex parte Tip-ton/ 28 Tex. App. 438, 13 S. W. 610; *Spangler v. .Jacoby, 14 Ill. 297; State v. Algood, 87 T'enn. 163.)
    Where by the constitution the presiding officer in the presence of the house over which he presides is required to sign all bills and joint resolutions, and the fact of signing to be entered on the journal, it must affirmatively appear from the journals that the constitutional requirements were complied with. (State v. Kiesewetter, 45 Ohio St. 254; Cohn v. Kingsley (Idaho), 49 Pac. 985 ; R. R. ■Go. v. Hughes, 38 Ill. f 74; Burritt v. Gomfrs; 120 Ill. 322; Annapolis v. Harwood, 32 Md. 471; State v. Hal-liday, 63 Ohio St. 165; *Hunt v. State, 22 Tex, App. 396, 3 S. W. 233; Ex parte Tipton, 28 Tex. App. 438, 13 S. W. 610 State.v. Platt, 2 S'. C. 150.)
    The following are very nearly, if not all, the reported American cases upon the subject of whether, in ease of a conflict between them1, the enrolled Act or the journals of the legislature control: ■
    Alabama. — In this state it is held that the journals control.. (1848, State v. Marshall, 14 Ala. 411; 1854, Gollier v. Frier-son, 24 Ala. 109; 1856, Dew v. Gunningham-, 28 Ala. 466; 1869, Jones v. Hutchinson, 43 Ala. 721; 1872, Moody v. State, 48 Ala. 115, 17 Am. Pep. 28; 1875, State v. Buckley, 54 Ala. 599; 1876, Harrison v. Gordy, 57 Ala. 49; 1877, Gounty v.
      By. Go., 58 Ala. 546; 1877, Claris v. Jade, 60 Ala. 271; 1877, Watker v. Griffith, 60 Ala. 361; 1880, McKenie v. Gorman, 68 Ala. 442; 1884, Moog v. Randolph, 77 Ala. 597; *1884, Sayre v. Pollard\, 77 Ala. 608; 1885, Abernathy v. State, 78 Ála. 411; 1885, Do?melly v. State, 78 Ala. 453; 1885, Riem v. Leeper, 78 Ala. 517; 1886, Halt v. Steele, 82 Ala. 562, 2 So. 650; 1887, Hare v. Kennerly, 83 Ala. 608, 3 So. 683'; 1890, Jennings v. Bussell, 92 Ala. 603, 9 So. 421; .1S91, Henderson v. State, 94 Ala. 95, 10 So. 332; 1898, Ex parte Iron Go., 119 Ala. 484, 24 So-. 516; 1899, O’Hara v. State, 121 Ala. 28, 25. So. 662; 1899, State V. Wilson, 123 Ala. 259, 26 So. 482, 45 L. R. A. 772;'1900, Mont. etc. Whs. v. Gaston, 126 Ala. 425, 28 So.'497, 51 L. R. A. 396; 1901, Robertson v. State, 130 Ala., 164, 80' So. 494.) None of tbe constitutions of Alabama, 1819, 1865, 1867 or 1875, have any general mandatory provision. That of 1875, under which the last case was decided, has a provision (Art. IY, Sec. 13) as to keeping journials, and a provision as to signature of presiding officers on bills almost exactly like our own constitution (Art. IY, Sec. 27).
    Arizona. — In Arizona it is held that the Act is conclusive. (1876, Graves v. Alsap, 1 Ariz. 274, 25 Pac. 836; 1895, Har-wood v. Wenhvorth (Ariz.), 42 Pac. 1028; 1896, Harwood v. Wentworth, 162 IJ. S'. 547.)
    Arkansas. — 'In Arkansas the journals control the enrolled Act. (1857, Burr v. Boss, 19 Ark. 250 ; 1871, Vinsant v. Knox, 27 Ark. 266; 1873, English v. Oliver, 28 Ark. 317; 1877, State v. By: Go., 31 Ark. 701; 1877, Worthen v. Badc/ett, 32 Ark. 496; 1878, Smithee v. Garth, 33 Ark. 17; 1879, State v. Crawford, 35 Ark. 237; 1882, Gounty v. Davies, 40 Ark. 200; 1883, Smithee v. Campbell, 41 Ark. 471; 1884, Webster v. Little Boch, 44 Ark. 536; 1886, Davies v. Gaines, 48 Ark. 370, 3 S. W. 184; 1887, Dow v. Beidelman, 49 Ark. 325, 5 S'. W. 297; *1889, Glidexvell v. Mon-tin, 51 Ark. 599, 11 S. W. 882.) Arkansas has had five constitutions, 1836, 1861, 1864,. 1868 and 1874, the last being- now in force. All have a provision in regard to keeping journals, save the first, which only provides for the publication, evidently thinking one would necessarily be kept.
    California. — In the early decisions of this state the court held that the journals controlled the Act, even allowing oral evidence to be introduced in the first of the two. following cases: 1852, Fowler v. Pierce, 2 Cal. 1G5; 1858, Yanderslice v. Hanks, 3 Cal. 47. Then followed the leading case of, *1863, Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93, per Sawyer J., in which it was held that the journals could not be used to impeach the enrolled Act. This was followed by, 1872, People v. Burt, 43 Oal. 560. All these decisions were under the constitution of 1849, which contained no general mandatory provision, but simply one (Art. IV, See. 11) providing that journals should be kept. But the constitution adopted in 1879, and which is now in\ force, has in it a mandatory provision exactly like our own, and from which, apparently, our own was taken (Art. I, Sec. 22). It also'has a provision by which journals are to be kept (Art. IV, Sec. 10), but none requiring the signature of the presiding officers to bills. Under this constitution it has been held that the journals control the enrolled Act. (1880, Weill v. Konfield, 54 Cal. Ill, per McKinstry, J.; *1882, The Railroad Tax Case, County v. R. R. Co., 8 Sawy. 238-92, 13 Bed. R. 722-67, per Sawyer, J.; 1883, County of Santa Clara v. Southern Pac. R. Co., 18 Bed. 385; 1885, People v. Thompson, 67 Cal. 628, 9 Pac. 833; *1886; Oakl. P. Co. v. Hilton, 69 Cal. 211, 11 Pac. 3; 1889, People v. Dunn, 80 Cal. 211, 22 Pac. 140, 13 Aim. St. 118; 1891, Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 25 Am. St. 230, 14 L. R. A. 459; 1893, People v. County, 100 Oal. 419, 35 Pac. 302; 1896, Hale v. McQettigam,, 114 C'al. 112, 45 Pac. 1049; 1899, Popper v. Broderick, 123 Oal. 456, 56 Pac. 53.) But two years ago, in the following oases, 1901, County v. Colgwn, 132 Cal. 265, 64 Pac. 403; 1901, People v. Harlan, 133 Oal. 16, 65 Pac. 9, the Supreme Court of California has apparently reversed all the previous decisions under the new constitution. These were commissioners’ decisions, and after a full oral argument two of the justices dissented in tbe first case. Tbe opinions are based on tbe decisions in Sherman v. Story, supra, and Field v. Glark (IT. -S.), and tbe mandatory provision of tbe constitution is apparently disregarded. ■
    Colorado1. — In tbis state tbe journals control tbe enrolled Act. (*1881, In re Roberts; 5 C'olo. 525; 1888, 'Hughes v. Felton, 11 Colo. 489, 19 Pac. 444; 1891, In re GenT Appropriation Bill, 16 Colo. 539, 29 Pac. 379; 1894, Nesbit v. People, 19 Colo. 441, 36 Pac. 221; 1894, Ins. Go. v. Trust Go., 20 Colo. 1, 36 Pac. 793; 1894, Robertson v. People, 20 Colo-. 279, 38 Pac. 326; 1899, In re House Bill No-. 250, 26 Colo. 234, 57 Pac. 49.) Tbe constitution of 1876 bas no such mandatory provision as our own, nor is there any provision as to tbe signatures of tbe presiding officers; but Art. V, Sec. 13, provides that tbe journals shall be kept.
    Connecticut. — In Connecticut the Act controls, and tbe journals cannot be used to impeach it. (*1849, Eld v. Gorham, 20 Conn. 8.) Tbis case was given by a divided bench, two.judges doubting, and is held in some opinions to be not altogether in point. Connecticut bas no general mandatory provisions either in tbe constitution of 1776, or in that of 1818 ; tbe latter, however, bas a provision that the journal shall be kept, Art. Ill, See. 9, but none for tbe signing by the presiding officers, of bills.
    Dakota Territory. — While a territory it was decided that tbe silence of the journals would not overthrow tbe presumption of regularity attaching to tbe certificate.of tbe presiding officers to tbe passage of a bill, but the question of the conflict between tbe enrolled Act and the journals bas not been decided. (1889, Territory v. O’Gonnor, 5 Dak. 397, 3 L. R- A. 355.)
    Delaware.' — No cases in this state have been found, on this point. Tbe constitution of 1831, now in force, contains no general mandatory provision, nor one relating to tbe signing of bills by tbe presiding officers, but Art. II, Sec. 8, provides that journals shall be kept.
    Florida. — In Florida tbe journals control tbe enrolled Act. (*1884, Stale v. Brown, 20 Fla: 407; 1888, State v. -Deal, 24 Ma. 293, 4 So. 889; *1893, Mathis v. State, 31 Fla. 291, 12' So. 681; 1895, State v. Green, 36 Fla. 154, 18 So. 334; 1895, State'v. Hoclcer, 36 Fla. 358, 18 S'o. 767.) Tbe constitutions, of Florida, 1838, 1865, 1868 and 1885, contain no general mandatory provisions!; .the last one, now in force, provides in Art III, Sec. 12, for the keeping of journals, and in Art. Ill, Sec. 17, for authentication by the presiding officers. It may be proper to observe that in this state the provisions of the. constitution relating to the due. enactment of lawp! are held to-be mandatory, Mathis v. State, supra.

      . Georgia.- — In this state the presumption from- the enrolled Act is controlled by the journals. ■ (1890, Speer v. Mayor, 85 Gá. 49, 11 S. E. 802, 9 L. E-. A. 402; 1892, Butler v. State, 89 Ga. 821, 15 "Si. El 763; 1897, Ansley v. Hooper, 101 Ga. 231, 28 S. K 649.) Georgia has had six different constitutions, 1777, 1789, 1798, 1865,, 1868 and 1877,-the last being that under which thercases supra were decided. None of these contain a general mandatory provision.’ Thé constitutions of 1865- and 1868 have provisions for preserving enrolled bills in the office of the secretary of state. That of 1868 had provisions as to keeping journals and that -bills should be signed by the presiding officers.' That of 1877 provides, Art. I, Sec. 4, Par. 2, that-unconstitutional laws shall be declared so by the judiciary, and, Art. Ill, Sec. 7, Par. 4, that journals shall be kept, and by Par. 13 of the same'section that the bills shall be signed by the presiding officers.
    Idaho. — Here it is held that the enrolled Act is- controlled by the':jo-urnal. (1889, Bwrlchardt v. Reed, 2 Idaho, 470, 22'Paor 1; 1889, Glough v. Curtis, 2 Idaho, 489, 22 Pac. 8’; 1895, Wright v. Kelley '(Idaho), 43 Pac. 565; 1895, Water Co. v/ Stoclcslager (Idaho), 43 Pac. 568; 1896, County v. Heard (Idaho), 45 Pac. 890; *1887, Cohnr. Kingsley (Idaho), 49 Pac. 985, 38 L. P. A. 74; 1897, State v. Boise,(Idaho), 51 Pac.; 110; 1897, Brown v. Collister (Idaho), 51 Pac. 417; 1900, Andrews v. Conors (Idaho), 63 Pac. 592.) The Idaho constitution of 1889 is.similar.to our own, but has noi general mandatory pro-. vision; jet the court, in Golin v. Kingsley, supra, laid it down that the provisions of the constitution in the manner of the passage of bills were mandatory. See Const, of Idaho, Art.' Ill, Sec. 15, and note, in Yol. I, Idaho' Codes Annotated, p: LXX, (1901). Idaho has no constitutional provision for authentication by the presiding officers.
    Illinois. — In Illinois any variance between the enrolled Act and the journals is controlled by the latter. (1846, Peo’ple v. Campbell, 3 G-ilm. 466; *1853, Spangler v. Jacoby, 14 Ill. 297, 58 Am. Deo. 5i7l, and note; 1855, Turley v. County, 17 Ill. 151; 1857, People v. Hatch, 19 Ill. 283; 1857, Prescott v. Trustees, 19 Ill. 324; 1861, Supv’rs v. People, 25 Ill.' 163; 1863, People v. Hatch, 33 Ill. 9; *1864, People v. Starne, 35 Ill. 121, 85 Am. Dec. 348, 24 Am|. L. Beg. 155 ; *1865, By. Co. v. Hughes, 38 Ill. 174; 1867, By. Co. v. Wren, 43 Ill. 77; 1867, Bedard v. Hall, 44 Ill. 91; 1867, Crob v. Cushman, 45 Ill. 119; 1871, People v. De Wolf, 62 Ill. 253; 1872, Hensoldt V. Petersburg, 63 Ill. 157; *1873, Byan v. Lynch, 68 Ill. 160; 1873, Happel v. Brethawer, 70 Ill. 166, 22 Aim. Bep>. 70; 1873, Miller v. Goodwin, 70 Ill. 659; 1874, Plummer v. People, 74 Ill. 361; 1875, Larrison v. By. Co., 77 Ill. 11; 1876, Binz v. Webber, 81 Ill. 288; 1879, People v. Lowenthal, 93 Ill. 191; 1881, Wenner v. Thornton, 92 Ill. 156; *1887, Burritt v. Com’rs, 120 Ill. 322, 11 NL E|. 120 ; 1887, Leach v. People, 122 Ill. 420, 12 N. EL 726; 1892, By. 'Co. v. People, 143 Ill. 434, 33 N. E. 173, 19 L. B- A. 119; 1902, People v. Knopf, 198 Ill. 340, 64 N. El 842.) None of the Illinois constitutions have any general mandatory provisions. That of 1870, now in force, has a provision as to the journals-, Art. IY, See. 10, and also one with regal’d to> signing’ bills by the presiding officers, Art. IY, Sec. 13. The constitutions- of 1818 and 1848 have similar provisions. It may be further stated that it was from Illinois that California obtained her present constitution (13 Bed. 767).
    Indiana.- — In this state the journals- do not control the Act as enrolled. Formerly the journals were used to- impeach the Act. (1851, Skinner v. Doming, 2 Ind. 560; *1856, Coleman
      v. Dobbins, 8 Ind. 156, and reporter’s note; 1858, McCulloch v. State, 11 Ind. 4-84; 1860, Coburn v. Dodd, 14 Ind. 341; 1861, State v. Bailey, 16 Ind. 48; 1864, Cordell v. State, 22 Ind. 4.) But the rule was changed, and the Act is now conclusive. (*1869, Evans v. Browne, 30 Ind. 514, 95 Am.'Dec. 110; 1873, Turbeville v. State, 42 Ind. 490; 1876, Bender v. State, 53 Ind. 254; 1880, Edger v. Com’rs, 70 Ind. 331; 1883, County v. Burford, 93 Ind. 383; 1886, Stout v. Com’rs, 107 Ind. 343, 8 N. E. 222; 1888, State v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. B. A. 65; 1889, Hovey v. Stale, 119 Ind. 395, 21 N. E. 21; Berkshire, J., in a separate opinion, holds that in this case the journals were proper if not conclusive evidence; 1894, State v. Boice, 140 Ind. 506, 40 N. E-. 113; 1894, 17. U. Tel. Co. v. Taggart, 141 Ind. 281, 40 N. E:. 1051, 60 L. B. A. 671; 1897, Lewis v. State, 148 Ind. 346, 47 N. E'. 675; 1897, Board v. Beeves, 148 Ind. 467, 46 N. E. 995.) Neither the constitution of 1816 nor that of 1851, now in force, contains a general mandatory provision. Both have provisions for keeping journals and for the presiding officers signing, bills, those of the latter being Secs. 12 and 25, respectively, of Art. IV.
    Iowa. — In Iowa the enrolled Act in the office of the secretary of state is conclusive. (1857, .Clare v. State, 5 Io.wa, 509; *1861, Duncombe v. Prindle, 12 Iowa, 1; 1886, Jordan v. Circuit Court, 69 Iowa, 177, 28 N. W. 548.) But the journals may be referred to in the case of a d-isimted amendment to the constitution. (*1883, Koehler v. Mill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; 1901, State v. Brockhardt, 113 Iowa, 250, 84 N. W. 1064.) The constitution of 1846 was superseded by that of 1857, now in force. Neither contained a general mandatory provision. Both had sections relating- to keeping-journals andj the signing of bills by the; presiding officers, and also clauses declaring the constitution to be “the supreme law of the land.” See Art. Ill, Secs. 9 and 12, and Art. XII, Sec. 1, respectively, of the 1857 constitution.
    Kansas.- — -In this state the enrolled Act is controlled by the journals. (1874, Haynes v. Heller, 12 Kan. 384, and note; *1875, Division of County•, 15 Kan. 194; 1876, Corners v. Hig-ginbotham, 17 Kan. 62; *1881, In re Const. Prohib. Amendment, 24 Kan. 700; 1882, State v. Francis, 26 Kan. 724; 18-82, In re Vanderberg, 28 Kan-. 243; *1886, Weya/nd v. Stover, 35 Kan. 545, 11 Pae. 355; 1889, States. "Robertson, 41 Kan. 200, 21 Pac. 382; 1891, C. <& C. Ry. Co. v. Manhattan, 45 Kán. 419, 25 Pac. 879; 1893, In re Gunn, 50 Kan. 155, 32 Pac, 470; 1897, Homrighausen v. Knoche, 58 Kan. 646, 50 Pac. 879; 1898, In re Taylor, 60' Kan. 87,. 55 Pac. 340; 1900, Chesney v. McClintoclc, 61 Kan. 94, 58 Pac. 993; 1902, State v. Andrews, 64 Kan. 474, 67 Pac. 870.) Kansas bad three constitutions-prior to that now in force, viz., 1855, 1857 and 1858. In 1859 the present one was adopted. This has provisions similar to the-former ones as to keeping journals (Art.'ll, Sec. 10), and for authentication of bills by the presiding officers (Art. II, Sec. 14).
    Kentucky. — In the earlier decisions it was strongly intimated that the enrolled Act would be controlled by thé journals. (1869, Com. v. Jackson, 5 Birsh. 680; 1878, Auditor v. Haycraft, 14 Bush. 284.) And the case of 1890, Ward v. Beall, 91 Ky. 60, 14 Si W. 967, held that the-enrolled Act was controlled by the. printed statutes when these had been subsequently adopted by the legislature. The case of, 1892;, Miller v. Johnson, 92 Ky. 589, 18 S. W. 123, wiasi in regard to a constitutional .amend-Iment, and the journals were consulted. And in the case of, *1892, Norman v. Kentucky Board, 93 Ky. 537, 20 S'. W. 901, 18 B. R. A. 556, the court plainly indicates the controlling influence of the journals. Biut the rule was changed in, 1896, Lajferty v. Huffman, 99 Ky. 80, 35 S-. W. 123, 32 L. R. A. 203; 1896, Com. v. Shelton, 99 Ky. 120, . 35 S, W. 128; 1896, Com. v. Harden Go. Ct., 99 Ky. 188, 35 S. W. 275.) And the enrolled A’ct now controls-. (1897, Trustees-v. Louisville, 100 Ky1. 470, 36 S-.-W. 921; 1897, O. <& N. Ry. Co. v. Barclay’s Adm’r, 102 Ky. 16, 43 S. W. 177; 1899, Waller v. Murray (Ky.), 53 S. W.. 25.) It appears from Lafferty v. Huffman, supra, that journals may be used in some eases, especially when taken in connection with Trustees v. Louisville, supra, the same judge delivering the opinion in each case. In Kentucky none of the constitutions, 1792, 1799, 1850, or 1891, contain general mandatory provisions. The last contains (Sec. 40) a provision for keeping journals, and also' an explicit provision (Sec. 56) for authentication by! the presiding officers.
    Louisiana. — Formerly in this state the enrolled Act was held conclusive. (*1871, Lottery Co. v. Richoux, 23 La. Ann. 743, 8 Am. Rep-. 161; 1873, Whited v. Lewis, 25 La. Ann. 568.) But the rule was changed, and the journals now control. (*1884, City v. Brooks, 36 La. Ann. 641; 1891, State v. Mason, 43 La. Ann. 590, 9 Sol 776; *1893, Hollingsworth v. Thompson, 45 La. Ann. 222, 12 So. 1; 1897, State v. King, 49 La. Ann. 881, 21 So. 585; 1898, Board v. Fowler, 50 La. Ann. 1358, 24 So. 809; 1901, State v. Laiche, 105 La. 84, 29 So. 700.) Louisiana has had six constitutions, 1812, 1845, 1852, 1864, 1869 and 1879, the latter being now in force. All contain no general mandatory provisions. The former ones have sections relating to- keeping journals, but none as to authentication of bills by the presiding officers. The present one, Art. 28, provides for keeping journals and their preservation in the secretary of state’s office; and also, Art. 39, for the signing by the presiding officers of all bills in open house, and that the “fact of signing shall be noted on the journal.”
    Maine. — In Maine it is held that the enrolled Act will not be controlled by the journals. (*1889, Weelcs v. Smith, 81 Me. 538, 18 Atl. 325.) Maine has had but one constitution, that of 1820. In 1875 a revision took place by which certain amendments were incorporated into the body of the instrument. The revised instrument, Art. IY, Part III, Sec. 5, provides for the keeping of journals', but has no provision for the signing of bills by the presiding officers of the two houses, nor any general mandatory provision.
    Maryland. — Maryland first held that the enrolled Act was conclusive. (1829, Binney’s Case, 2 Bland. 99-154; 1856, Dowling v. Smith, 9 Md. 242-278-79.) In. tbe following case, which is sometime cited contra, Eccleston, J., held that the journals could be examined: *1858, Fouhe v. Fleming, 13 Md. 392-412. In the following' case Maulsby, J., held that an Act, to be valid, must be signed by the governor in the presence of the officers of the two houses, holding xlrt. Ill, Sec. 29, of the constitution of 1864 to be mandatory: 1870, Annapolis v. Har-wood, 32 Md. 471, 3 Am. Bep. 161. The present rule is that the journals control. (*1875, Berry v. By. Co., 41 Md. 446, 20 Ami. Rep. 69; *1875, Legg v. Annapolis, 42 Md. 203 ; 1878, Strnss v. Iieiss, 48 Md. 292; 1883, Co. Coinrs v. Burgess, 61 Md. 14; 1896, Creager v. Hooper, 83 Md. 490-504, 36 Atl. 359.) None of Maryland’s constitutions have contained general mandatory provisions, nor any provision for authentication by the presiding officers. The constitution of 1867, now in force, has a provision for keeping journals (Art. Ill, Sec. 22), and also- one by which the governor is to- sign all bills in the presence of the presiding officers and chief clerks of the two houses, etc. (Art. Ill, Sec. 30), similar provisions being found in the constitutions of 1851 and 1864.
    Massachusetts. — It appears in the following case that the legislative journals were minutely examined, but no case has been found where the question of a conflict between them and the enrolled Act has been passed upon: 1878, Opinion of the Justices, 126 Mass. 557. There is also a dictum of Iloar, J., to the effect that it is the province and duty of the court to determine whether the constitutional -requirements with regard to the enactment of laws have been observed by the legislature. (1859, Burnham v. Morrissey, 14 Gray, 226.) The constitution of 1780, now in force, contains no general provisions mandatory, or as to keeping journals, or as to signing bills by the presiding officers. Part II, Chap. I, Sec. 1, Art. I, evidently contemplates that journals will be kept.
    Michigan. — In this state the journals control the enrolled Act. (1844, Green v. Graves, 1 Dougl. 351; 1849, Nesmith v. Shel

      don (Mich.), 7 How. 812; 1851, South worth v. By. Co., 2 Mich. 287; *1865, People v. Mahaney, 13 Mich. 481, per Cooley, J.; 1867, People v. Supervisor, 15 Mich. 254; 1870, Stechert v. E. Saginaw, 22 Mich. 104, per Cooley, J. ;1882, Fade v. Barton, 47 Mich. 520, 11 N. W. 367, per Cooley, J".; 1884, Atty. Gen. v. Joy, 55 Mich. 94, 20 N. TV. 806, per Cooley, C. J.; 1886, Callaghan v. Chipman, 59 Mich. 610, 26 N; W. 806; 1886, Atty- Gen. v. Amos, 60 Mich. 372, 27 N. TV. 571; 1887, Atty. Gen. v. Rice, 64 Mich. 385, 31 N. TV. 203; 1888, People v. McElroy, 72 Mich. 446, 40 N. TV. 750, 2 L. R. A. 609; 1889, Sackrider v. Supervisors, 79 Mich. 59, 44 N. TV. 165 ; 1890, Stow v. Grand Rapids, 79 Mich. 595, 45 N. TV. 493 ; 1890, Rode v. Phelps, 80 Mich. 598, 45 N. TV. 493; 1890, Caldwell v. Ward, 83 Mich. 13, 46 N. TV. 1024; 1891, People v. Burch, 84 Mich. 408, 47 N. TV. 765; 1891, Atty. Gen. v. Supervisors, 89 Mich. 552-92, 51 N. TV. 483; 1892, Com. Council v. Board, 91 Mich. 78, 51 N. TV. 787; 1893, Atty. Gen. v. Pl-Rd. Co., 97 Mich. 589, 56 N. TV. 943; 1894, Atty. Gen. v. Parsell, 100 Mich. 170, 58 N. TV. 839; 1894, Toll v. Jerome, 101 Mich. 468, 59 N. TV. 816; 1895, Davoclc v. Moore. 105 Mich. 120, 63 N. TV. 424; *1898, People v. Dettenthaler, 118 Mich. 595, 77 N. TV. 450, 44 L. Ri. A. 164; 1899, Allen v. Board, 122 Mich. 324, 81 N. TV. 113, 47 L. R, A. 117; 1901, Com. Council v. Schmid, 128 Mich. 379, 87 N. TV. 383.) Neither the constitution of 1835 nor that of 1850 (now in force) contains general mandatory provisions. In the latter, Art. IV, Sec. 10, provides for keeping journals. It was held in People v. Dettenthaler, supra, that the provisions of the constitution were not directory merely.
    Minnesota. — 'Minnesota, holds that the journals may be used to impeach the enrolled Act. (*1858, Supervisors v. Iieenan, 2 Minn. 281; 1877, State v. ‘Hastings, 24 Minn. 78; 1883, State v. Gould, 31 Minn. 189, 17 N. TV. 276; 1884, Burt v. Ry. Co., 31 Minn. 472, 18 N. TV. 285; 1888, State v. Peterson, 38 Minn. 143, 36 N.'TV. 443; *1891, Comstock v. Tracey (Minn.), 46 Ned. Rep. 162; 1891, IAncoln v. PLaugan, 45 Minn.. 451, 48 N. W. 196; 1893, Ellis v. Ellis, 55 Minn'. 401, 56 N. W. 1056; *1896, Miesen v. Canfield, 64 Minn. 513, 67 N. W. 632; 1897, Kelly v. Gallup, 67 Minn. 169, 69 N. W. 812; 1900, Lien v. Board, 80 Minn. 58, 82 N. W. 1094.) The constitution of 1857, now in force in Minnesota, bas no general mandatory provisions. Art. IY, Sec.' 5, is tbe provision witb reference to keeping journals, and Section 21 of tbe same article provides tbat tbe presiding officers of the two bouses shall sign all bills, and in case of refusal to sign tbe bouse may .provide for proper authentication.
    Mississippi. — In tbis state tbe enrolled Act is conclusive. In two cases tbe decision was otherwise: *1856, Green v. Weller, 32 Miss. 650, and also- 33 Miss. 735; 1874, Brady v. West, 50 Miss. 68. -But, tbe third of the following cases settled tbe rule: 1866, Swann v. Bucle, 40 Miss. 268; 1877, Greer v. State, 54 Miss. 378; *1886, Ex parte Wrenn, 63 Miss. 512, 56 Am. Bep. 825; 1892, Hunt v. Wright, 70 Miss. 298, 11 So. 608. Tbe constitutions of 1817, 1832, 1868 and 1890 contain no general mandatory provisions. All contain provisions for publication of tbe journals^not for keeping them; and for tbe authentication of bills by tbe presiding officers, tbe last one also providing tbat tbe fact of signing shall be. entered on tbe journal.
    Missouri. — 'Missouri held at first tbat tbe enrolled Act was conclusive, though allowing, tbe journals to be consulted in tbe case of a constitutional amendment. (1821, Douglas v. Banle, 1 Mo. 20; 1836, State v. McBride, 4 Mo. 303, 29 Am. D'ec. 636; *1856, By. Co. v. Governor, 23 Mo. 353, 66 Am. Dec. 673; 1873, St. Louis v. Foster, 52 Mo. 513.) But under tbe constitution of 1875 tbe journals are held to control tbe enrolled Act. (1875, Bradley v. West, 60 Moi 33; *1879, State v. Mead, 71 Mo. 266; 1883, Pacific v. Siefert, 79 Mo. 210.) Tbis last case bolds apparently to the old rule, but tbe rule in favor of tbe journals is now well settled. (1891, State v. Wray, 109 Mo. 594, 19 S. W. 86; 1892, Wells v. By. Co., 110 Mo. 286, 19 S. W. 530; 1893, State v. Field, 119 Mo. 593, 24 S. W. 752; 1898, State v. Meier, 72 Mo. App: 618; 1900, McCaffery v.
      Mason, 155 Mo. 486, 55 S'. W. 636.) The three constitutions of Missouri, 1820, 1865 and 18/75 contain no general mandatory provisions. The case of Wells v. By. Co., supra, declares the constitutional provisions, to be mandatory. All provide for authentication by presiding officers, and publishing journals. . The provision of the last constitution, Art. IV, See. 37, is that “no bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session,” and the fact of signing is to be recorded on the journal.
    Montana. — Here the rule seems to be uncertain. In 1894,’ Stale v. Toolcer, 15 Mont. 8, 37 Pac. 840, 25 L. E. A. 560, the court held that there had not been compliance with the constitutional requirements to malm a proposed amendment to the constitution valid. In the case of, 1895, State v. Mitchell, 17 Mont. 67, 42 Pae. 100, the court quoted from the house and senate journals with reference to the history of the Act itself, and held it void. But the case of, 1898, State v. Long, 21 Mont. 26, 52 Pae. 645, is a case almost exactly in point, and in this it was held that the court would not go behind the enrolled Act. The rule here laid down is that in By. Co. v. Governor (Mo-.). In the case of, 1899, Durfee v. Harper, 22 Mont. 354, 56 Pac. 582, an amendiment to the constitution was held invalid because not entered upon the journals which were referred to.
    Nebraska. — In this state the enrolled Act may be impeached by the journals. (1876, Hull v. Miller, 4 Neb. 503; *1879, Cottrell v. State, 9 Neb. 125, 1 N. W. 1008; 1880, State v. Liedtlce, 9 Neb. 462, 4 N. W. 61; 1885, Taylor v. Wilson, 17 Neb. 88, 22 N. W. 119; 1885, Ballou v. Blade, 17 Neb. 389, 23 N. W. 3; 1885, State v. McClelland, 18 Neb. 236, 25 N. W. 77; 1885, State v. Stevenson, 18 Neb. 416, 25 N. W. 585; 1886, State v. Poole, 20' Neb. 96, 29 N. W. 246; 1887, In re Groff, 21 Neb. 647, 33 N. W. 426; 1888, State v. Van Duyn, 24 Neb. 586, 39 N. W. 612; 1893, State v. Moore, 37 Neb. 13, 55 N. W. 299; 1894, Ames v. By. Co. (Neb.), 64 Fed. 165, per Brewer, J.; 1898, In re Granger, 56 Neb. 260, 76 N. W. 588; 1898, Webster v. City, 56 Neb. 669, 77 N. W. 127; *1899,
      State V. Abbott, 59 Neb. 106, 801 N. "W. 419 ; 1899, Weis v. Ashley, 59 Neb. 494, 81 N. W. 318 ; 1900, Webster v. Gity of Hastings, 59 Neb. 563, 81 M W. 510; 1900, State v. B. By. Có., 60 Neb. 'Til, 84 N. W. 253; 1900, State v. Frank, 60 Neb. 327, 83 N. W. 74; 1901, Slate v. Gity of Wahoo, 62 Neb. 40, 86 N. W. 923; 1902, Richards v. State (Neb.), 91 N. W. 878; 1902, Cleland v. Anderson (Neb.), 92 NL W. 306.) B'otb the 1866-67 and tbe 1875 constitutions have no general mandatory provisions. Tbe latter, now in force, provides for the keeping of ' tbe journals and tbe signatures of tbe presiding officers to bills in Art. Ill, Secs. 8 and 11, respectively.
    Nevada. — In tbisi state tbe enrolled Act is beld conclusive. (*1875, State v. Swift, 10 Nev. 178, 21 Am. Bep>. 721; 1875, State v. Rogers, 10 Nev. 250; 1883, State v. Glenn, 18 Nev. 34, 1 Pac. 186; 1895, State v. Nye¡ 23 Nev. 99, 42 Pac. 856; 1899, State v. Beck, 25 Nev. 68, 56 Pac. 1008.) In tbe case of, 1887, State v. Tufly, 19 Nev. 391, 12 Pac. 835, an amendment to tbe constitution was declared invalid because not entered upon tbe journals. Tbe Nevada constitution of 1864 provides, Art. IV, Sec. 14, for journals to be kept, and in Art. IV, Sec. 18, for authentication of bills; but bas no general mandatory provisions.
    New Hampshire. — In this state tbe enrolled Act is controlled by tbe journals. (1858, Opinion of tbe Justices, 35 N. II. 579; 1864, Opinion on Soldiers’ Voting Bill, 45 N. II. 607; *1873, Opinion of tbe Justices, 52 N. H. 622; 1901, Opinion of tbe Justices (N. H.), 50 Atl. 329.) In 1776 New Hampshire adopted a constitution which was tbe first adopted by any state. A second one was adopted in' 1784, and that now in force in 1792. None of these contain a general mandatory provision. Tbe present one, Part II, Sec. 24, provides for tbe keeping of journals, but has nothing as to authentication of bills.
    New) Jersey. — In this state tbe enrolled Act is beld to be tbe best evidence of tbe law, and is not overcome by inconsistent entries in tbe journals. (*1866, State ex rel. Pangborn v. Young, 32 N. J. L. 29, 5 Am. L. Reg. (N. S.), 679; 1834,
      Passaic Freeholders v. Stevenson, 46 N. J. L. 173; 1889, Standard, etc. Gable Co. v. Atty. Gen., 46^ N. J. Eq. 270, 19 Atl. 733, 19 Am. St. 394; 1890, Schemerhorn v. Jersey City, 53 N. J. L. 116, 20 Atl. 829; 1894, Inhab. Swing v. Trenton, 57 N. J. L, 318, 31 Atl. 223; 1897, Bott v. Board, 61 N. J. L. 160, 38 Atl. 848; 1902, State v. Cranberry Twp. (N. J.), 52 Atl. 568.) Tbe constitution of 1776 bad no provisions as to journals or authentication of bills. That of 1844 bad merely a provision as to journals. That of 1875, now in force, Art. IV, Sec. iv4, provides for keeping journals, but not for authentication. No general mandatory provision is to be found in any of them.
    New Mexico. — In this territory, following the rule in the United States Supreme Court, the Act controls. (1894, Lyons v. Woods (N. M.), 153 U. S. 649.)
    New York. — The cases in this state are most unsatisfactory. It has been said that it is impossible to know just where New' York stands on this point. The present law. seems to be this— that in the case of defective certificates of the presiding officers of the senate and assembly, the journals may he resorted to in order to ascertain the vote on a given bill. In some of the opinions it is said that the journals may be resorted to for the purpose of seeing if the constitutional requirements have been complied with, and that they are competent evidence for some purposes. The statements in the brief in Field v. Ciarle (U. S.), are to be taken with some qualification, especially with reference to what are there termed dicta (see Be Bow's Case, and also* Fetrea’s Case). (1827, Boot v. King, 7 Cow. 613-35 ; 1833, Coutant v. Pople, 11 Wend. 512; 1839, Thomas v. Dalcin, 22 Wend. 9; *1840, Warner v. Beers, 23 Wend. 103-125; 1841, Hunt v. Van Alstyne, 25 Wend. 605; 1841, People v. Purdy, 2 Hill, 31; *1842, Purdy v. People, 4 Hill, 384; 1843, B. & N. By. Co. v. City, 5 Hill, 209 ; *1845, De Bow v. People, 1 Denio, 14; 1846, Bank v. Sparrow, 2 Denio, 97; 1853, People v. Supervisors, 8 N. Y. 317; 1854, De Camp v. Breland, 19 Barb. 81-104; 1858, Opinion of Attys. Gen., 273; 1865, People v.
      Devlin, 33 N. Y. 269; 1870, In re Kingston, 40 How. Pr: 444"; 1870, People y. Allen, 42 N. Y. 378 ; 1873, People v. Com’rs,. 54 N. Y. 276, 13 Am. Bep. 581; 1877, Matter of N. T. El. By. Go., 70 N. Y. 327-51; *1883, People y. Petrea, 92 N. Y. 128; 1891, Bumsey y. By. Co., 130 N. Y. 88, 28 N. R 763; 1896, Matter of -N. Y. etc. Go. v. Smith, 148 N. Y. 540; 42' N. E; 1088, 35 N. Y. S. 920.) The constitutions of New York of 1777, 1821 and 1846 contain no general mandatory provisions, nor any with reference to signatures of the presiding officers. The latter is provided for in the statutes (I Rev. Stat. 187, Secs. 10 and 11). Journals are to be kept byi Art. Ill, Sec. 11, of the 1846 constitution, now in force.
    North Carolina, — -In North Carolina the enrolled Act is held conclusive in the following cases: *1870; Broadnax v. Groom, 64 N. O. 244; 1878, Gatlin v. Tarboro, 78 N. O. 119; 1879, State y. Bobinson, 81 N. C. 409; 1887, State v. Patterson, 98 N. O. 660, 4 S, R 350; 1895, Garr v. Coke, 116 NÍ CL 223, 22 S. R 16, 28 R R. A. 737; 1895, Wyatt v. Go., 116 N. C. 271, 22 S. E. 120; 1895, Barde v. Oxford, 116 N. O. 339-68, 21 S. E. 410. But the rule is now changed, and the journals control the enrolled Act. (*1896, Bank v. Oxford, 119 N. O. 214, 25 S. B. 968, 34 L. B. A, 487; 1897, Gom’rs v. Snuggs, 121 N. C. 394, 28 S. E. 539, 39 L. BAA. 439; 1898, Bodmany. Washington, 122 N. O. 39, 30 S. EL 118; 1898, Wilkes Go. Com’rs v. Gall, 123'N. O. 308, 31 S. El. 481, 44 L. R, A. 252; 4898, Corners v. Payne, 123 N. O. 432, 31 S-. E. 711; 1899, Smathers v. Gomrs, 125 N. C. 480, 34 S. R 554; *1900, Board v. Goler (N. G), 180 U. S. 506; 1900, Glermy. Wray, 126 Ni C. 730, 36 S. R 167; 1901, Black v. Gomrs, 129 N. C. 121, 39 S. E. 818; 1901, Gomrs v. De Bossett, 129 N. C. 275, 40 S. EL 43; 1902, Hooker v. Greenville, 130 N. CL 472, 42 S. EL 141; 1902, Debnam v. Chitty, 131. N. G. 657, 43 S-. E. *3.) Neither the constitution of 1776 nor that of 1868 contains any general mandatory provision. Both provide for the authentication of bills, by the presiding officers and for the keeping of journals, those of the latter being Secs. 35 and 18, respectively, of Art. IL -

      North Dakota. — The single decided case in this state holds that the enrolled Act is conclusive, 1901, Power v. Pitching, Í0 N. D. 254, 86 N. W. 72?, following the South Dakota rule. The present constitution was adopted in 1899. Art. I, See. 21, is a mandatory and prohibitory provision like our own. Art. II, Sec. 49, provides for the keeping of journals. Art. II, Sec. 66, is a provision for authentication by the presiding officers, also exactly like our own.
    Ohio. — In this state the journals1 control the enrolled- Act. (1832,-State v. Moffett, 5 Ohm, 358; 1854, Miller v. State, 3 Ohio St. 475; 1863, Fosdick v. Perrysbw'g, 14 Ohio St. 472; *1870, Fordyce v. Goodman, 20 Ohio St. 1; 1886, State v. Smith, 44 Ohio St. 348, 7 N. E. 447-, 12 N. E. 829; 1887, State x. Kieseweiter 4-5 Ohio St. 254, 12 N. E. 80?; 3889, State v. Pabbitts, 46 Ohio St. 178, 19 N. E. 438; 1894, Board v. Best, 52 Ohio St. 138, 39 N. E. 694; 1900, State v. Halliday. 63 Ohio St. 165, 57 N. E. 1097.) The Ohio constitutions of 1802 and 1851 (now in force) contain no general mandatory provision. Art. IT, Sec. 9, of the latter contains a provision that “each house shall keep a correct journal of its proceedings, which shall be published.” Art. TI, Sec. 17, provides for the authentication of bills by the presiding officer in the presence of the house Avhile the same is in session.
    Oregon. — In this state the journals control the enrolled Act. (1883, Mum,ford v. Sewall, 11 Ore. 67, 4 Pac. 585, 50 Am. Rep. 462; 1887, State v. Wright, 14 Ore. 365, 12 Pac. 709; 1897, McKinnon v. Cotner, 30 Ore. 588, 49 Pac. 956; *1892, Currie x. So. Pac. Go., 21 Ore. 566, 28 Pac. 884; 1892, State v. Rogers, 22 Ore. 348, 30 Pac. 74.) The present constitution of 1857 has no general mandatory provision nor any relating to the signature on bills of the presiding officers, but Art. TV", Sec. 13, provides that journals shall be kept.
    Pennsylvania. — In this state the trend of the decisions seems to be in favor of the conclusiveness of the enrolled Act, though the question is an open one as yet. It is, however, intimated in the last decided case (1893) that where the constitution requires forms to be observed in the enactment of a statute, the journals might be resorted to: in order to> see if such forms had been duly observed. (1764, Albertson v. Robeson (Pa.), 1 Dali. 9 ; 1846, Miles v. Stevens, 3 Barr. 21-41; 1849, J ones v. Jones, 12 Pa. St. 350, 51 Am Dec. 611, and note; *1853, Speer v. Pile. Rd. Go., 22 Pa. St. 376; 1856, South. Banlc v. Com., 26 Pa. St. 446; 1877, Kilgore v. Magee, 85 Pa. St. 401-12; 1884, Com. v. Martin, 107 Pa. St. 185; 1893, Perhins v. Philadelphia, 156 Pa. St. 554, 27 Atl. 356.) The constitution of 1776 . did not require journals to be kept, although evidently contemplating (Sec. 14) that they would be. Those of 1790 and 1838 had a provision for keeping therm There is nothing said as to authentication of bills by the presiding officers; in any one of -the three. The present constitution of 1873 provides for the keeping of journals and for authentication and entry of the fact on the journals in Art. II, Sec. 12, and Art. Ill, Sea 9, respectively. None of the constitutions of Pennsylvania have any such mandatory provision as has our own. Jones v. Jones, supra, seems to hold that the provisions of the constitution with regard to the form- of enactment of laws are to bé considered mandatory.,
    Eihodo Island. — No cases found. The present constitution of Rhode Island (1842) contains noi general mandatory provision nor any for the signatures of the presiding officers to bills, but Art. IV, Sec. 8, provides that journals shall be kept.
    South Carolina. — In this state the journals controlled in the following cases: *1870, State v. Platt, 2 S. O. 150; 1878, State v. Smalls, 11 S-. O. 262-86; *1879, Bond Debt Oases, 12 S. O. 200-289; 1879, State v. Hagoody 13 S’. C. 46. B“ut the rule is now changed, and the enrolled Act conclusive as to all matters except “those prerequisites fixed by the constitution, and of which- prerequisites the journals of the two houses are required to furnish the evidence.” (*1893, State v. Town Council, 39 S’. C. 307, 17 S'. E. 752.) The constitution of 1776 had no provisions for keeping journals or authentication of bills. That of T778 provided that the presiding officers should sign bills, and the same is true of that of 1790. That of 1865 contained a similar provision, and seems to-infer that journals would be kept. That of 1868 had provisions for keeping journals and authentication of bills. None of the foregoing contain any general mandatory provision. The present constitution ocf 1895 has a mandatory and prohibitory provision similar to mu-own, Art. I, See. 29, one for keeping, journals, Art. Ill, Sec. 22, and one for authentication of bills, Art. Ill, See. 18. Quaere. What would be the rule under the present constitution ?
    South Dakota. — -South Dakota holds the enrolled Act Conclusive, though in the first case the contrary rule obtained. (1894, Somers v. State, 5 Si D. 321, 58 N. W. 804; 1897, State v. Harried, 10 S-. D. 109, 72 N. W. 93; 1901, Narregang v. County, 14 Si D. 357, 85 N. W.- 602; 1901, State v. Bacon, 14 S. D. 394, 85 N. W. 605.) The present constitution of 1890 has no mandatory provision like our own, but provides that journals shall be kept and bills authenticated, in Art. Ill, Secs. 13 and 19, respectively.
    Tennessee. — In this state the journals control. (1856, Ferguson v. Banlc, 3 Sneed, 609 ; 1878, Bouldin v. Lockhart, 1 Lea, 195; 1879, State v. McConnell, 3 Lea, 332; *1880, Gaines v. Horrigan, 4 Lea, 608; 1880, Williams v. State, 6 Lea, 549; 1887, Hays v. State (oral opinion on circuit), see 86 Tenn. 737; 1888, Brewer v. Huntingdon, 86 Tenn. 732, 9 S. W. 166; *1888, State v. Algood, 87 Tenn. 163, 10 S. W. 310; 1892, Nelson v. Haywood County, 91 Tenn. 596, 20- S. W. 1.) The constitutions of 1796 and 1834 have provisions for keeping journals and for proper authentication of bills. That of 1870, now in force, has a provision for keeping journals and also one declaring that “no bill shall become a law” unless signed in open session by the presiding officers and the fact of signing noted on the journals — to which the court is especially referred.
    Texas. — The rule in Texas is thisi: That where the constitution prescribes certain forms for the passage of an Act, these forms must be observed, and the journals mjay be resorted to- in order to ascertain whether or not they were. In other cases the enrolled Act is conclusive. (1870, By. Co. v. Hearne, 32 Tex, 546; 1875, Blessing v. Galveston, 42 Tex. 641; .1880, By. Co. y. Odum, 53 Tex. 343; 1880, Usener y. State, 8 Tex. App, 177; *1886, Hunt v. State, 22 Tex. App. 396, 3 S'. W. 233; 1887, Day L. & C. Co. v. Siaie, 68 Tex 526, 4 S. W. 865 ; 1890, Duncan v. McCall (Tex.), 139 U. S-, 449; 1890, Leeper y. Texas (Tex.), 139 U. S. 462; *1890, Hem parte Tipton, 28 Tex. App. 438, 13 S. W. 610, 8 L. B. A. 326; 1891, Bhuing v. Duncan, 81 T'ex. 230, 16 S'. W. 1000; 1892, Williams v. Taylor, 83 Tex. 667, 19 S'. W. 156; 1894, McLane v. Paschal, 8 Tex. Oiy. 401, 28 Si W. 711.) The constitutions of 1845, 1866 and 1868 contain no general mandatory provisions, but provide for due authentication and keeping journals. That of 1876, now in force, has no general ¡mandatory provisions, but Art. Ill, Secs. 12 and 38, provide for the keeping of journals] and signing of bills by the presiding officers respectively!. The cases of Hunt v. State and Bx parte Tipton, supra, declare the constitutional requirements as to the passage of Acts to be mandatory.
    Utah. — In Utah the journals control in ease of a conflict with the enrolled Act, although one case is the other way. (1878, Lyman v. Martin, 2 Utah, 136; 1888, People v. Clayton, 5 Utah, 598, 18 Pac: 628 (contra) ; *1896, Bitchie v. Bicharás, 14 Utalq 345, 47 Pac. 670; 1896, Stanton v. Hardy, 14 Utah; 380, 47 Pac. 1102.) The constitution of 1895 has a mandatory provision (Art. I, Sec. 26) almost exactly like that'in our own. Art. IY, Secs. 14 and' 24, provide respectively for the keeping of journals and authentication of bills by the presiding officers, which fact is to be entered on the journals*. Both these provisions have been held to be essential to1 the due passage of a bill (Bitchie v. Bicharás, supra).

    Vermont. — The single case in Vermont, reported in the Vermont Reports, is, *1844, In re Wellman, 20 Vt. 656, although delivered by Judge Prentiss in the United States district court.. This opinion is cited by counsel claiming for or against the conclusiveness of the enrolled Act, but Mr. Justice Miller, in Gardner v. Collector (U. S.), says* that this case expressly declares in favor of the journals. The constitutions of 1TTT and 1786 evidently contemplate that journals would be kept, though not expressly providing therefor. The present one, adopted in 1793, provides for the printing of journals, though none are required to be kept. None of these constitutions have any mandatory provision; like our own. In none of them is any provision made for the authentication of bills, though this is now done by statute (Statutes 1894, Sec. 188).
    Virginia. — In this state the journals control the enrolled Act. (1884, Wise v. Bigger, 79 Va. 269.) None of the constitutions of Virginia contain general mandatory provisions; nor any with regard to the due authentication of bills. Neither the constitution of 1776 nor that of 1830 provides for the journals to be-kept, but this occurs in those of 1850, 1864 and 1870, the latter being Art. V, Sec. 10.
    Washington. — In this state the journals do not control. ("XV893, State v. Jones, 6 Wash. 452, 34 Pac. 201, 23 L. It. A. 340, and note; 1901, Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717.) The present constitution of Washington was adopted in 1889. It has a mandatory but no prohibitory provision, Art. I, Sec. 29. The provisions with regard to the enactment of laws'are in Secs. 18, 19, 20, 21, 22, 31, 32, 36, 37 and 38 of Art. II. Art. II, Secs. 11 and 32, refer respectively to the keeping, of journals and authentication of bills by the presiding officers.
    West Virginia. — In West Virginia the journals control the enrolled Act. (1871, Osburn v. Staley, 5 W. Va. 85, 13 Am. Rep. 640; 1897, Price v. Moundsville, 43 W. Va. 523, 27 S'. E. 218.) The constitution of 1863 requires journals to be kept, and that bills shall be signed by the presiding officers before the close of the session. The present constitution of 1872 has a provision for keeping journals, but none for authentication of bills. Neither of these contains a mandatory provision like our own.
    Wisconsin. — In this state the journals control the presumption from the enrolled Act. (1866, Watertown v. Cady, 20 Wis. 528; 1878, Bound v. By. Co., 45 Wis. 543; 1885, Meracle v. Down, 64 Wis. 323, 25 N. W. 412; 1891, McDonald v. State, 80 Wis. 407, 50 N. W. 185; 1896, State v. Wendler, 94'Wis. 369, 68 N. W. 759; 1898, State v. Polacheck, 101 Wis. 427, 77 N. W. <708; 1901, Milw. County v. Isenring, 109 Wis. 9, 85 N. W. 131.) Tbe present constitution was adopted in 1848, and provides, Art. IY, Sec. 10, for keeping journals; but has neither a general mandatory! provision nor one for due authentication of bills.
    Wyoming. — In Wyoming the journals control. (1872, Brown v. Nash, 1 Wyo. 85; 1872, By. Co. v. Carr, 1 Wyo. 96; 1892, White v. Hunt, 3 Wyo. 753, 30 Pae. 953; 1897, State v. Swan, 7 Wyo. 166, 51 Pac. 209, 40 L. E. A. 195.) The present (1890) constitution has no general mandatory provision, but provides for the keeping of journals, and for authentication of bills by the presiding officers in terms almost exactly like those of our own constitution.
    United States. — The rule in the supreme court is as laid down in Field v. Clark, and Board v. Coler, infra, that the enrolled Act is conclusive; but where forms of enactment are deemed mandatoryi either by a provision of a state constitution or by a decision of a state supreme court, such forms must be followed'— otherwise the Act is void, and this may be shown by the journals. (1764, Albertson v. Bobertson, 1 Dali. 9 (Pa.) ; 1821, Anderson v. Dunn, 6 Wheat 204; 1832, Kelly v. Jackson, 6 Pet. 622; 1840, Falconer v. Campbell, 2 McLean., 195; 1842, Watkins v. Dolman, 16 Pet. 25-56; 1849, Nesmith v. Sheldon, 7 How. 812 (Mich.) ; 1854, Bruce v. U. S., 17 How. 439; 1868, Gardner v. Collector, 6 Wall. 499; 1875, Blake v. Bank, 90 U. S-. 307; *1877, So. Ottawa v. Perkins, 94 U. S. 260 (HI.) ; 1879, Soule v. U. S., 100 U. S. 683 (Ill.) ; 1881, Walnut v. Wade, 103 U. S. 683 (Ill.); 1881, Ohio v. Frank, 103 U. S. 697 (Ill.); *1882, Post v. Supervisors, 105 U. S. 667 (Ill.) ; *1882, The Bailroad Tax Case, County v. B. B. Co., 8 Saw. 238-92, 13 Fed. 722-67 (Cal.) ; 1883, County of Santa Clara v. Southern Pac. B. Co., 18 Fed. 385 (Cal.) ; 1886, Campbell v. Gas Light

      Co., 119 IT. S. 449; 1890, Duncan v. McCall, 139 U. S. 449 (Tes.) ; 1890, Leeper v. Texas, 139 IT. S. 462 (Tex.) ; *1891, Field v. Clark, 143 IT. S. 649; 1891, U. 8. v. Ballin, 144 IT. S. 1; 1891, Comstoclc v. Tracey, 46 Ned. 162 (Minn.) ; 1894, Lyons v. Woods, 153 IT. S. 649 (N. M.) ; 1894, A,mes v. By: Co., 64 Ned. 165 (Neb.) ; 1896, Harwood v. Wentworth, 162 IT. S. 547 (Ariz.) ; *1900, Board Comrs v. Coler, 180 IT. S. 506 (N. 0.)
    England.- — Holding the1 enrolled Act conclusive. (Duke of Norfolk3s Case, 1 Dyer, 93 (1 Queen Mary, 1553) ; Tin. Prince’s Case, 8 Co. 28 (3 Jac. 1606) ; Floyds. Barker, 12 Co. 24; Bax v. Countess of Arundel (T'rin. Term), Hobart, 249 (110), (14 Jac. 1617); Bex v. Jeffries, 1 Str. 146 (7 Geo. 1721) ; Bex V. Bobotham•, 3 Burr, 1472), 4 Geoi Ill, 1764).
    Courts will not taire judicial notice of the journals of either bouse, such not being the records of parliament. (Bex v. Kno'l-lys, 1 Ld. Bay. 10, 15, 12 Am. & Eng. Ency. Law, 154.) The result from tbe foregoing citations is that twenty-eight of the states hold that the journals control the enrolled Act in such eases "as this ; the general rule in the Supreme Court of the United States, the rule in England, and the rule in twelve of the states (not including territories which follow the Supreme Court rule), is that the enrolled Act is conclusive evidence; while California, Montana and Pennsylvania may be classed as doubtful; and no cases have been found in, Massachusetts, Delaware and Bhode Island. It may also be of interest to note that of the states whose decisions are to be found in the Pacific Be-porter the proportion is three to one in favor of the journals as against the enrolled Act, two being classed as doubtful.
    The following text writers hold that the journals may be resorted to, especially when the provisions of the constitution with reference to the keeping of journals are considered to be mandatory : Black’s Constitutional Law, Secs. 31, 102; Cooley’s Constitutional Limitations (6th Ed.), pp. 93, 156, 163, 168; Sedg-wick’s Statutory Construction, 539, 551; Cushing, Leg. As-sembl., Sees-. 2211, 2374; 1 Whart. (3rd Ed.), Secs. 290, 295; 1 Greenl. Nvid. (76th. E!d.), 482; Sutherland’s Statutory Construction, Secs. 41-52; Smith’s Const. Lim., 590; 1 Dillon’s Munuicipal Corp., See. 291 (299).
    The title is an integral part of the bill under our constitution, and that instrument explicitly says that the subject of the bill “shall be clearly expressed in its title.” (Constitution of Montana, A!rt. V, Sec. 23; 1882, Montclair v. Ramsdell, 107 U. S. 142-55 ; 1892, Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821; 1895, State v. Mitchell, 17 Mont. 67, 42 Pac. 100, and cases; 1897, Jobb v. Meagher Co., 20 Mont. 424, 51 Pac. 1034, and cases; 1899, State v. Anaconda G. M. Go., 23 Mont. 498, 59 Pac. 854, and cases; 1902, State v. Gowrtney, 2ft Mont. 378, 71 Pao. 308, and cases; 1903, Western Ranches v. Custer Go., 28 Mont. 278, 72 Pae. 659, and cases; Sutherland Statutory Construction, Secs. 86, 88, .102.)

      Mr. James Donovan, Attorney General, for the State.
   MR COMMISSIONER CALLAWAY

prepared the opinion for the court.

The defendant was found guilty upon a charge of unlawfully shooting and killing a turtle dove, and has appealed from the judgment.

It is contended by his counsel that the complaint upon which the prosecution is based does not state facts sufficient to constitute a public offense, for the reason that the statute making the shooting and killing of a turtle dove a crime is unconstitutional.

In support of this contention it is urged that the statute in question — 'Senate Bill No. 29, approved March 4, 1903 (Sess. Laws 1903, Chapter 58), is void for two reasons:' (1) Because the title of the bill does not comply with the requirements of Section 23, Article'V, of the Constitution; (2) because the legislature failed to comply with certain constitutional provisions relating to the procedure to be observed by it in the enactment of laws, as appears by the journals of the senate and house of representatives.

Section 23, Article V, of the Constitution, reads: “No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject which shall be clearly expressed in its title; but if any subject shall be embraced in any Act which shall not be expressed in the title, such Act shall be void only as to so- much thereof as shall not be soi expressed.”

The title of Senate Bill No. 29, reads as follows: “ ‘An Act to repeal Sections 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1140, 1141, 1142, 1143 and 1144, of the Penal Code of the State of Montan#, and to provide further protection to birds; fish, fur bearing animals and game,’ approved March 8, 1897, a® amended by House Bill No. 13, Session of 1901, approved March 14, 1901.”

House Bill No. 13, referred to> has the following title: “An Act to amend an Act entitled An Act to repeal Sections 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1140, 1141, 1142, 1143 and 1144 of the Penal Code of the State of Montana, and to provide further protection to birds, fish, fur bearing animals and game.” (Sess. Laws 1901, p. 171.)

It will be observed that that part of the title of! Senate Bill No. 29 which is within quotation marks is couched in the exact language of the title to House Bill No. 13, omitting the first clause thereof, which is. “An Act to amend an Act entitled.” The words “approved March 8, 1897, as amended by House Bill No. 13, Session of 1901, approved March 14, 1901,” as used! in the title of Senate Bill No. 29, seem to be descriptive of some other Act. Furthermore, that part of the title of Senate Bill No-. 29 which is within quotation mjarksi is the exact language of the title of House Bill No.. 123, approved March 8, 1897. (Sess. Laws 1897, p. 249.)

It is apparent from the foregoing that Senate Bill No. 29 lias no title at all. It is simply a quotation, of part of tine title of House Bill No. 13 and all of the title of Iionse Bill' No. 123. Probably some words hare been omitted from the title unde.” which Senate Bill Nov 29 was originally introduced, but this surmise is of no moment, because it is the A!ct as it finally passed the senate and house of representatives and received the approval of the governor which is before us for consideration. If we treat it as an Act to repeal Sfectionsi 1110 to 1144, im elusive, we find it to be an attempt to repeal sections which have not been in existence since the approval of House Bill 123, which dates from March 8, 1897. This could not have been the purpose of Senate Bill No. 29, because it quotes the entire title of House Bill 123, and: gives) its date, following with the words “as amended by House Bill Nov 13, Session, of 1901, approved March 14, 1901.” Byi reference to the body of Senate Bill No. 29, we find it attempts to' amend House Bill No. 13 in many important particulars, and this shows the intent of the legislature. No such intent could have been inferred from the title of the bill. The title did not direct attention truly to the matter which was to be legislated upon. Neither the membe.’s of the legislature nor the people could havei been informed by the title in question that the bill was for the purpose of amending House Bill No. 13.

In Western Ranches v. Custer County, 28 Mont. 278, 72 Pac. 659, it is said: “If the title of an Act is single, and directs the mind to the subject of the law in a way calculated to direct the attention truly to the matter which is proposed to be legislated upon, the object of the provision is satisfied.” It is not satisfied unless the object of the legislation is clearly so expressed.

As is said in State v. Anaconda Copper Mining Co., 23 Mont. 498, 59 Pac. 854, the constitutional provision “is to restrict the legislature to the enactment of laws the objects of which legislators and the public as well may be advised of, to the end that any who are interested, whether as representatives or those represented, may be intelligently watchful of the course of the pending bill. The limitation is likewise designed to prevent legislators and the people from being misled by false or deceptive titles, and to guard against fraud in legislation by way of incorporating into a law provisions concerning which neither legislators nor the public have had any intimation through the title read or published.” And see State v. Courtney, 27 Mont. 378, 71 Pac. 308; Jobb v. Meagher Co., 20 Mont. 424, 51 Pac. 1034; State v. Mitchell, 17 Mont. 67, 42 Pac. 100; Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821.

Defendant’s contention that Senate Bill No. 29 is unconstitutional must therefore be sustained.

According to the complaint defendant killed the turtle dove August 13, 1903. Having determined that Senate Bill No. 29 is void, we must look to House Bill No. 13, to see whether that applies. By inspection of Section 5 of the Act last mentioned we find that it is permissible to kill turtle doves during a period commencing on the 1st day of August and ending on December 15 th.

It follows that the complaint does not state a public offense. This determination renders a discussion of the second point raised by defendant, upon which his counsel has filed a most exhaustive brief, unnecessary.

We are therefore of the opinion that the judgment should be reversed, and the defendant discharged.

Pee CueiaM.

For the reasons given in the foregoing opinion it is ordered that the judgment be reversed and the defendant discharged.

[Rehearing denied December 24, 1903.
      Leading cases are marked with a star (*).


source: Caselaw Access Project

author: MR. COMMISSIONER PO ORMAN Per CukiaM.

license: Public Domain

text:
    MONTANA RAILROAD COMPANY, Appellant, v. FREESER, Respondent.
    (No. 1,699.)
    (Submitted October 21, 1903.
    Decided December 1, 1903.

      Drkinent Domain — Condemnation Proceedings for a Railroad Right of Way — Damages for Improper Construction.

    Under Code of Civil Procedure, Sections 2221, 2222, damages accruing to adjacent property from improper construction of railroad are not allowable in condemnation proceedings for a railroad right of way.

      Appeal from District Court, Meagher County; Wm. L. Holloway, Judge.

    Condemnation proceedings by tbe Montana Railroad Company against John H. Freeser. From a judgment awarding increased damages to defendant over the commissioners’ award, and from an order overruling a motion for a new trial, plaintiff appeals.
    Reversed.

      Mr. M. S. Gunn, for Appellant.

      Mr. Lewis Penwell, and Messrs. Word & Word, for Respondent.
    Where in a condemnation proceeding there is evidence to sustain the verdict, and the testimony is conflicting, the appellate court will not interfere1. (Helena & L. S. & R. Co. v. Lynch, 65 Pae. 919; Montana Ry. Co. v. Warren, 6 Mont. 275, 284; Springfield & Memphis Ry. Co. v. Rhea, 44 Ark. 258; Railway Co. v. Woodruff, 49 Ark. 381; III. & Wis. Ry. Co. v. Vanllorn, 18 Ill. 258; Kyle v. Miller, 108 Ind. 90; Colville v. St. Paul & C. Ry. Co., 19 Minn. 283; Sedalia v. Ry. Co., 23 Neb. 613; In re Gilroy, 78 Hun. 260; Shoemaker v. U. 8., 147 TJ. S-. 282; Lewis on Eminent Domain, 2d Ed., Sec. 524; III. R. R. Co. v. McClintoclc, 63 Ill. 514; Somerville R. R. Co. v. Doughty, 22 N. I. Law, 495; Matter of N. 7. R. R. Co., 21 Hun. 250.)
   MR. COMMISSIONER PO ORMAN

prepared the opinion for the court.

This action was instituted in the district court of Meagher county for the purpose of having a strip of land situated in said county, and belonging to defendant, condemned for use as a right of way for a railroad. The complaint was filed February 1, 1900, and a summons was issued on that day. Subsequently a hearing was had, an order of condemnation made, and commissioners appointed, who subsequently made and filed their report, awarding damages to defendant. Tbe defendant appealed from this award. A trial by jury was bad- on June 15, 1900, resulting in a verdict for defendant for a greater amount than that awarded by tbe commissioners. Judgment was entered against tbe plaintiff. Plaintiff then moved for a new trial, Avbieh was overruled. Prom this judgment, and from the order overruling tbe motion for a new trial, plaintiff appeals.

It appears from tbe evidence that tbe tract of land through which this right of way passes consists of 1,080 acres, 1,000 acres of which are on tbe south side of the Musselshell river, and 80 acres on tbe north side; that tbe portion along the river on tbe south side) is a long, narrow strip of meadow land, containing about 350 acres; that on tbe high land south of this meadow land the defendant has constructed an irrigating ditch; that tbe right of way sought to be condemned is about half way between the river and this irrigating ditch. It appears further that prior to the trial of this case the railroad had been partially constructed.

The evidence introduced by the defendant was ahnost wholly opinion evidence, even as to those matters which by measurement and survey! might have been made definite and certain. The defendant, testifying in his own behalf, says with reference to the drainage of his land: “In the construction of the railroad through there, there are cuts and fills. I think there are three cuts and four or five fills. The material used in mating the fills came off what they claim as their right of way on each side. Before the railroad was put through there I could irrigate the whole ranch from the main ditch — just turn it out of the main ditch and let it run down to the river, where now it flows to the grade and forms a pond there, and I can’t irrigate good below the track.” The defendant then gave it as his opinion that the amount of hay that he would be able to out from this meadow would be considerably less by reason of the road being there. Defendant was then asked: “How far is the water backed up there by the grade?” The plaintiff objected “to any proof that any water is backed up byl the grade, upon the ground that the question of the amount of damages depends upon the conditions existing at the time of service of the summons in this case, and, if there is any damage resulting from the construction of the road, it cannot be considered in this case, but is a matter for a subsequent action.” This objection was overruled, and the witness then testified: “It is backed up in three or four places there. I have got to be very particular how I turn my water loose, otherwise it is liable to flood the grade. There are places there that are four feet under water. It is ten feet where these holes are. It is backed up for 100 or 150 feet — up towards the ditch.” Subsequently, on cross-examination, the defendant says: “I have eight laterals extending under, the track. There is no reason why all the laterals I had before can’t be extended under the track and carried on to- the north side. The railroad company were to do that, but they haven’t constructed them at all. I was allowed damages for the construction of sixteen boxes under the track by the commissioners. There are eighteen culverts and ditches in that mile and a half, and I have eight. That eighteen would cover my entire irrigating system, and take them all under the track.”

The statute relating to condemnation proceedings necessary to be considered in passing upon this alleged error are Sections 2221, 2222, Code of Civil Procedure. Subdivision 1 of Section 2221 provides that the value of the property sought to be appropriated and all improvements thereon pertaining to' the realty must be assessed as” damages. Subdivision 2 of this see tion reads: “If the property sought to be appropriated constitutes only a part of a larger parcel, the damages, which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and tlse construction of the improvements in the manner proposed by the plaintiff.” Section 2222 reads in part: “For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the. summons, and-its actual value at that date shall be the measure of compensation of all property to. be actually! taken, and tbe basis of damages to property not actually taken but injuriously affected.”

Tbis statute is definite and certain as to the time when compensation and damages accrue, and it is also certain in its terms as to the right of the owner to recover damages which will accrue to that portion of the larger tract not sought to be condemned, by reason of the severance. But aside from the value of the land actually taken, the statute does ,not enumerate just what elements may be taken into, account in fixing damages to the remaining portion of the tract, nor what the rule shall be governing the admissibility of evidence: The owner is entitled in all cases to. have as one item of damages the actual value of the part taken, and where the contemplated improvements1, properly constructed, cared for, and operated, injure the remaining portion of the tract, he is entitled to recover for that, unless, the benefits derived equal or exceed the injury. When damages are appraised prior to the construction of the improvements for which the land is condemned, the estimate should be made on the assumption that the improvements! will be properly constructed ; and, if they are constructed pending the condemnation proceedings, the rule under this statute should be the same. The actual effect of the properly constructed improvements in the manner proposed by plaintiff as to the larger parcel should control the appraisal. If the improvements are improperly or negligently constructed, no additional damages should be given for this reason.

The rule laid down in Neilson et al. v. Chicago, etc. Railway Co., 58 Wis. 516, 17 N. W. 310, is so reasonable in its terms, and so plainly stated, that we quote from that decision: “The rule in Snyder v. W. U. R. R. Co., 25 Wis. 60, is that the measure of damages is the actual depreciation in value as established in evidence, exclusive of all remote, fanciful or speculative injuries; but that, in order to. account for and support their opinion of depreciated value, the witnesses who prove it may be permitted to state all causes of injury which they believe go to make up the depreciation to which they testify. But these do not go as evidence to the jury to assess damages upon, but only as means by wbicb the jury can estimate the value of the evidence of depreciated value. This is not a distinction without difference; it is a practical and important one. The witnesses who are permitted to state the grounds of their judgment are subject to cross-examination, and their judgment to criticism; there is some safety in permitting’ them, to speculate on the causes of depreciation. But to adknit evidence of remote and conjectural sources of injury for the jury to consider and assess damages upon, without restraint or scrutiny, would be going oiitside of all safe rule, and plunging into the the abyss of wild and suppositious damages.” The following eases are. cited as bearing upon this question: Freemont, E. & M. V. R. R. Co. v. Whalen, 11 Neb. 585, 10 N. W. 491; Oregon & Cal. R. R. Co. v. Barlow, 3 Ore. 311; Currie v. Waverly & N. Y. B. R. R. Co., 52 N. J. Law, 381, 20 Atl. 56, 19 Am. St. Rep. 452; Winona, etc. R. R. Co. v. Waldron, 11 Minn. 515, 88 Am. Dec. 100; Bloodgood v. Mohawk & H. R. R. Co., 18 Wend. 9, 31 Am. Dec. 313.

The application of this rule to the facts in the case from which the quotation is made may have been too' strict. The quotation is given only as a general rule, without regard to the manner in which it was applied in that ease'.

The evidence of defendant leading up to the question objected to shows that prior to the construction of the railroad the surface drainage of defendant’s land lying south of the railroad ran to the north, across the right of way, and into-, the river beyond ; that the contour of the country formed a natural drainage, and. required no- act on the part of defendant; that this water so drained was not surface water resulting from rainfall or melting snow, but was the overflow from the irrigation of defendant’s land south of the right of way. The amount of water which would accumulate and pond bach on defendant’s land would therefore be dependent on the act of defendant himself. If the defendant has the right to permit this water to drain down to this right of way in the manner testified to, then, it is the. obvious duty of the plaintiff to provide means for its escape; and if plaintiff does not provide such means, and damage results to the defendant, tbe law gives him a remedy. If this land were so situated that the proper construction of the road would prevent any drainage, a different question might arise, but, from the testimony of defendant, no such condition exists in this case. If damages can be properly assessed against plaintiff for the prospective flooding of defendant’s land under such circumstances, one of two conditions is apparent: The condemnation proceedings would be res adjudicates as to any action brought by defendant for damages resulting from any subsequent flooding of his land, or else, if the defendant could maintain such subsequent action, the plaintiff would be twice mulcted in damages' — once before the damage had been done, and once afterwards. This flooding may occur once in each year, or perhaps oftener. It may damage only the 100 or 150 feet of land testified to by the plaintiff, or it may damage many times that amount. It is therefore apparent that the condemnation proceedings cannot be res adjudicata as to such subsequent, damages, but that defendant may maintain a subsequent action therefor. The plaintiff cannot, under these proceedings, acquire a right to any part of defendant’s land, except that which is condemned herein for a right of way for its railroad.

The defendant is undoubtedly entitled to’ compensation for any damage which may result to him by reason, of having to change his irrigating ditches, or the construction of new ditches; and, if the proper construction of the road prevents him from irrigating a part of his land, this is also a proper item of damages.

The evidence called for by this question, and which was actually given in response to the question, submitted to the jury as a distinct item the damages which might result to defendant in case the road was improperly constructed, and in case, further’, that the defendant permitted a sufficient amount of water to escape to form a pond or lake that would flow bade upon his land. ' ' '

The admission of this evidence was error, for which the judgment and order appealed from should be reversed. ■ - ■

Tbe appellant further contended that tbe evidence- is insufficient to sustain tbe verdict.’ Tbe relations existing between tbe value of this ranch, regarded as a whole, and tbe values of tbe various parts thereof, as appeal's from tbe evidence on the part of tbe defendant, are not such as to convey any definite idea toi tbe jury as to tbe result which should be reached. The defendant first testifies that tbe ranch as a whole is worth $8,000. Again he says that the meadow land, consisting of 350 acres, is worth $50 per acre, making a value of $17,500 for that land alone. Again he states that 1,000 acres of the land (nearly the entire tract) is worth $25 per acre, making a total value therefor of $25,000. Again he states positively, on cross-examination, that this meadow land is worth $40 per acre, making the total value of such land $14,000. Again he says: “I put a price of $50 an acre on that strip that you took out of my ranch for the road. I wanted to- make it $150' just for the strip of 20 acres-. I will amend my answer and make it $150 for that strip. The bottom land — -hay land — before the road went through, was worth $40 an acre. The land that is included -in this right of way was not any more valuable before the road went through than the balance of the tract of meadowland.” If this strip of land taken for the right of .way was worth' $150 per acre, and was no more valuable than the rest of the meadow land, the direct inference would be that the entire tract of meadow- land was worth $150 per acre, which would be giving it a value of $52,500. The defendant possibly meant that the $150 per acre for the land taken would compensate him, not only for the land actually taken, but for all damages resulting from the severance; but such is not the statement in his testimony. All the witnesses on the part of the defendant, with possibly one or two exceptions, in testifying concerning the value of this land, either on direct or cross-exaimination, testified that a part of this ranch was worth several thousand dollars mo-re than the whole ranch. Some statements, were also made that the system of irrigation would have to be changed; that a part of the land could not be irrigated, by reason of the railroad being there; 'that no ditch could be constructed along tbe north side of the right of way, parallel with the same. But it appears that there had been no survey, no measurements made, noi levels taken, and that the evidence was thei mere opinion of the witnesses, derived from their general observation. There is absolutely no evidence as to the amount of land which could not be irrigated by reason of the construction of this railroad. The statement is only general that a part of the land cannot be irrigated. Whether this is one acre or 100 acres, there is no' evidence. One of the witnesses testified that when he passed over the land there were about 100' acres that were not at that time irrigated, but as to whether it could be irrigated the evidence is silent. This testimony, it must be remembered, was given by persons who qualified as experts, and it must be construed] by the rules governing evidence of the class to which it belongs.

Without passing on the question as to' the sufficiency of the evidence to sustain the verdict, we have deemed it proper to direct attention to the character of the testimony given, so that the court may be properly guided' a,t another trial.

Dor the first reason herein given, we recommend that the judgment and order appealed from be reversed.

Per CukiaM.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause- remanded for a new trial.

Me. Justice TIolloway, being disqualified, takes no part in this decision.