pellee that it knew the lumber did not con TIONS OF REGULARITY. (140 Ark. 597) form to the contract before it unloaded the HELENA WATER CO. et al. v. CITY OF HELENA. (Nos. 4, 15.) same, and this, together with the attendant circumstances, constituted evidence upon which to predicate the instruction. Appel-(Supreme Court of Arkansas. Nov. 24, 1919.) lant might have accepted the lumber without 1. STATUTES 283(2)-VALIDITY; PRESUMPasserting its right of inspection, and have relied on its legal right to ask for a reduction of the price in case the lumber was of inferior quality; that is to say, it might have recovered such damages in a cross-action if it had already paid the purchase price, or it might have set such damages up by way of recoupment if suit was brought by appellee for the price of the lumber. The court at the request of appellant gave instruction No. 2, which is as follows: "The court instructs you that the defendant had the right to unload the car to inspect it, and if you find that a material portion of the lumber was not in accordance with the order, the defendant would have the right to hold the lumber until the freight and unloading charges were paid the defendant." The presumption that where an act is duly signed by the Governor, deposited with the Secretary of State, and published as a law, every requirement was complied with in its passage, is not conclusive, and the courts in determining the validity of the statute may look to the journals and other records of the Legislature to ascertain whether the constitutional requirements have been observed. 2. STATUTES 283(2)-SILENCE OF RECORD INSUFFICIENT REBUTTAL OF PRESUMPTION OF REGULARITY. Mere silence of the legislative records concerning the successive steps in the passage of a bill, except as to matters of which the Constitution requires a record on the journals, is not sufficient to overcome the presumption of regularity in the passage of a bill arising from the enrolled copy signed by the Governor and deposited with the Secretary of State. 3. EVIDENCE 387(2)—Parol evIDENCE CON TRADICTING LEGISLATIVE RECORDS. In determining the validity of a statute, evidence outside of the record is inadmissible to overcome the presumption of regularity arising from the fact that the enrolled copy has been signed by the Governor and deposited with the Secretary of State. 4. STATUTES 283(2)—PRESUMPTION OF REG ULARITY OF PASSAGE OF STATUTE. The presumption that Acts 1919, p. 411, creating the Arkansas Corporation Commission, was regularly passed by the Legislature, is not overcome by recitals of the Senate journal that two amendments were adopted, where they did not appear on the enrolled statute signed by the Governor and deposited with the Secretary of State. 5. PUBLIC SERVICE COMMISSIONS 3-ABOLI [5, 6] It is claimed that the instruction is inconsistent with instructions No. 3 and 4, above set out and considered. We do not / think so. It is well settled in this state that the court cannot be required to cover every phase of the case in one instruction. In instruction No. 2 the court was submitting to the jury appellant's theory of the case. Under the contract appellant had the right to inspect the lumber before accepting it and to unload it for that purpose. Then if appellant found that the lumber did not come up to grade it would have the right to reject it, and it need not have returned the lumber, but might have held it until the freight advanced by it and the cost of unloading were paid. On the other hand, the right of inspection being to enable appellant to ascertain if the lumber conformed to the contract before accepting it, if it knew by examining the lumber while in the car that it was so defective that it did not conform to the contract, appellant The purpose of Const. Amend. 4, being to was then put to its election, and if it unload-provide for the correction of abuses, unjust dised the lumber such act amounted to an ac- criminations, and excessive charges by transceptance of it. If appellant accepted the lum-portation companies, and not the creation of any ber it could not hold it for the freight and cost of unloading, but, on the other hand, it was its duty to have paid the purchase price. Of course, as explained above, it might have accepted the lumber although of an inferior grade, and have set off the damages in a suit for the purchase price. No such issue was made in this case. It was the claim of appellee that the lumber came up to grade, and the jury was expressly told that appellee was not entitled to recover anything unless the lumber was of the kind and grade specified in the contract. We find no prejudicial error in the record, and the judgment will be affirmed. TION OF RAILROAD COMMISSION AND TRANS- particular offices or commissions, legislative power thereunder was not exhausted by the creation of the Railroad Commission, and Act 1919, p. 411, subsequently passed, abolishing the Railroad Commission and transferring its powers and duties to the Arkansas Corporation Commission created by that act, is not unconstitutional as being in excess of the legislative power. Hart and Wood, JJ., dissenting. Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor. Action by the City of Helena against the Helena Water Company and others. Judg. (216 S.W.) ment for plaintiff, and defendants appeal. Fink & Dinning, P. R. Andrews, and J. G. the Senate and signed by the presiding officers of the two houses and by the Governor does not contain those two amendments. ment It is settled by an unbroken line of decisions of this court that where an act was duly signed by the Governor, deposited with the Secretary of State, and published as a McCULLOCH, C. J. This action was in-law, it will be presumed that every requirestituted by the city of Helena attacking the validity of Act No. 571 of the General Assembly of 1919 (regular session), creating the Arkansas Corporation Commission and defining its duties, and abolishing the Railroad Commission and transferring its powers and duties to said Arkansas Corporation Commis another commission. was complied with in its passage. Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882; Mechanics' Building & Loan Association V. Coffman, 110 Ark. 269, 162 S. W. 1090; Perry v. State, 214 S. W. 2. [1] This presumption is not, however, a conclusive one, and the courts, in determining the validity of a statute, may look to the journals and other records of the Legislature to ascertain whether or not the constitutional requirements with respect to the passage of bills have been observed. Chicot County v. Davies, 40 Ark. 200; Webster v. Little Rock, 44 Ark. 536; Rogers v. State, 72 Ark. 565, 82 S. W. 169; Butler v. Kavanaugh, 103 Ark. 109, 146 S. W. 120; Mechanics' Building & Loan Association v. Coffman, supra. [2] Mere silence of the legislative records concerning the successive steps in the passage of a bill, except as to matters of which the Constitution requires a record on the journals, is not sufficient to overcome the presumption of regularity in the pasage of a bill arising from the enrolled copy which has been signed by the Governor and deposited with the Secretary of State. Smithee v. Garth, 33 Ark. 17; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Perry v. State, supra. The bill for the enactment of the statute originated in the Senate as "Bill No. 133," and on second reading 17 amendments were offered, 15 of which, according to the journal entries, were adopted, and the bill as thus amended was ordered engrossed. The engrossing committee reported the bill on February 24, 1919, as properly engrossed; but the engrossed bill which we find on file in the office of the Secretary of State does not contain two of the amendments which, according to the recitals of the journal, has been adopted. One of these was an amend[3] And evidence outside of the record is ment to section 7 of the bill adding a provi- not admissible to overcome that presumption. sion, in substance, that the commission was State v. Dorsey County, 28 Ark. 378; State empowered, when deemed proper, to require Fair Association v. Hodges, 120 Ark. 131, 178 the filing of an additional bond by a corpora-S. W. 936, Ann. Cas. 1917C, 829; Greene tion whose schedule of increased rates for County v. Clay County, 135 Ark. 301, 205 S. public service has been temporarily suspend- W. 709. ed by the commission. The other amendment The question now under consideration was, was to section 31 of the bill providing that we think, definitely settled against the conthe Railroad Commission should be abolished tention of the plaintiff, in the recent case of on January 1, 1921, and perform all the speci- Perry v. State, supra, where the records of fied duties of the Arkansas Corporation Com- the passage and enrollment of the statute mission until that date, instead of the origi- were not materially different from the facts nal provision of the bill to the effect that of the instant case. In that case the bill for the Railroad Commission should be abolished the statute under consideration originated, on April 1, 1919, and its powers and duties as in the present case, in the Senate, and the then transferred to the new commission. The journal showed an amendment which was journal of the Senate does not affirmatively duly engrossed by the committee and reportshow that the Senate at any time receded ed back. The only difference between the from either of those two amendments, and facts of the two cases is that in the Perry it recites the passage of the bill by the Senate Case the committee engrossed the amendment February 25, 1919, on yea and nay vote duly into a copy of the original bill and the inrecorded. The House journal recites the re- dorsement of the Secretary of the Senate ceipt of the bill on February 25th, the read- showing the final passage of the bill was on ing of it the first and second times February the original bill; whereas in the instant case 28th, on suspension of the rules, and the the committee engrossed into the original bill third reading and final passage on March 7, the 15 amendments now found in the enrolled 1919. Nothing appears on the journal of the statute omitting the 2 not shown in the enHouse concerning any amendments. The rolled statute and the indorsement of the bill as enrolled by the proper committee of secretary showing passage is on the back of the original bill as so engrossed. In discussing the question in that case we said: "It does not appear affirmatively that the bill, as engrossed, was read a third time and passed. The indorsement appears on the original bill and not on an engrossed bill. After being engrossed, it was within the province and power of the Senate to have ordered the bill placed back on its second reading for amendment and to have receded from the amendment engrossed into the bill, or to have stricken the amendment from the bill, and, should such course have been taken, it would not have been necessary to its validity to have entered these steps, concerning the amendment, on the journal. The silence of the record in this regard would not conflict with the presumption that such course was pursued by the Senate. The silence of a legislative journal, on matters not required to be entered on the journal, cannot conflict with the presumption of the regularity of the passage of a bill. It is only in matters where the journal does speak, or where it is required to speak, that it could conflict with such presumption. The journals in the instant case only go so far as to show that the amendment was adopted and engrossed in the bill. It does not affirmatively appear that the engrossed bill passed, or that the Senate did not recede from the amendment. Under the rule announced in the cases referred to, the court must indulge the presumption that the Senate did recede from the amendment, and, for that reason, the amendment adopted in the Senate did not appear in the enrolled bill." [4] So, in adhering to the rule announced in the case just cited, and in applying it to the present case, we must say that the presumption arising from the enrolled statute is not overcome by the recitals of the Senate journal that the two amendments in question were adopted; but, on the contrary, we must indulge the presumption that the Senate receded from those amendments before the bill was finally passed. Indeed, the omission of those amendments from the engrossed bill as it now appears in the office of the Secretary of State, and its acceptance by the Senate as thus engrossed, raised the presumption that those amendments were withdrawn or receded from before the bill went to the engrossing committee. [5] The next question with which we have to deal is whether or not the Legislature exceeded its powers in attempting to abolish the Railroad Commission or to transfer its powers to the newly created Corporation Commission. The people of the state adopted, in the year 1898, an amendment to the Constitution which reads as follows: as shall be necessary to carry into effect the powers hereby conferred." Amendment No. 4 to Const. The argument in this case is that the amendment to the Constitution restricts the powers of any office or commission created thereunder to those therein enumerated, viz., to the regulation of "excessive charges by railroads, canals and turnpike companies." and that it is beyond the authority of the Legislature to impose any further duties on any offices or commissions created for that purpose. It will be observed that the Constitution does not specify by name the office or commission to be created. It primarily provides for the correction of abuses, unjust discriminations, and excessive charges by transportation companies, and authorizes the creation of "such offices and commissions" and the investment in them of "such authority as shall be necessary to carry into effect" that provision. It constituted a command to the lawmakers to carry out the provision to create such offices, or commissions as might be found necessary. It is a grant, not a limitation of power, and the rule of exclusion of those things not expressed does not apply. It is, in other words, the power to correct abuses by transportation corporations, which is conferred by the Constitution, and not the creation of any particular offices or commissions, and the Legislature could, in the first instance, have created the present commission, and conferred on it the enumerated powers and others. The fact the Legislature first created a commission under the name of Railroad Commission did not exhaust its powers in that respect, and the power to create a commission under another name, with the authority enumerated and more, still, existed. We have decided that section 9, art. 19, of the Constitution, prohibiting the creation of permanent offices, was directory to the lawmakers, so far as concerned a determinatión that the creation of a temporary office was necessary, and that the legislative decision that the office created was temporary and not permanent was conclusive on the courts. Greer v. Merchants' & Mechanics' Bank, 114 Ark. 212, 169 S. W. 802. It may be that the people adopted amendment No. 4 under the belief that the constitutional provision referred to above is mandatory and that it was deemed necessary to grant express authority for the creation of offices or a commission to carry out the provisions of the amendment. Even if that be "The General Assembly shall pass laws to the case, it does not warrant the interpretacorrect abuses and prevent unjust discrimination and excessive charges by railroads, canals and tion of the language of the amendment that turnpike companies for transporting freight and the powers of the commission created were passengers, and shall provide for enforcing such to be restricted to those enumerated. laws by adequate penalties and forfeitures, and The conclusion of the majority of the court shall provide for the creation of such offices and is therefore that the attack on the statute is (216 S.W.) The decree of the chancery court is revers- it is plain that the section is mandatory and ed, and the cause is dismissed. WOOD and HART, JJ., dissent. HART, J. (dissenting). On account of our respect for a co-ordinate department of the government, and as well for the opinion of our brother judges and of those who have without question accepted office under the act creating the Arkansas Corporation Commission, Judge WOOD and the writer have deemed it proper, not merely to voice our dissent on the record on the ground that the act is unconstitutional, but to give our reasons therefor in writing. It is a judicial saying that the Constitution is the paramount law of the land, and is the fortification within which the people have entrenched themselves for the preservation of their rights and privileges. In Rison v. Farr, 24 Ark. 161, 87 Am. Dec. 52, it was further said: "The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, the Constitution is the sun around which all legislative, executive and judicial bodies must revolve; and that, whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature repugnant to the Constitution is null and void." This principle has been upheld in every decision since that time. In Greer v. Merchants' & Mechanics' Bank, 114 Ark. 212, 169 S. W. 802, the court had under consideration article 19, § 9, of the Constitution, prohibiting the creation of permanent state offices not expressly provided for by the Constitution, and held that it did not apply to the act creating the state bank department. The court said: "We attach little, if any, importance to the provision of the statute limiting the time to 12 years, for we think that the Legislature has the power to determine whether an office to be created is permanent or temporary, whether expressly declared in the act or not. If it is created as a temporary office, we must assume that the Legislature found it to be such. The creation of the office implies a determination that it is temporary, and not permanent." In concluding this branch of the discussion, the court said: not merely directory. If the section is mandatory, it is equally clear that the Legislature could not create a permanent office in contravention of its provisions. Therefore it is manifest from the language used that the court upheld the statute on the ground and the Legislature regarded the state bank department as a temporary office, and that its decision was conclusive on the courts. The practical effect of the majority opinion in the case at bar is that a constitutional office may be abolished, and that its duties, although specifically defined by the clause of the Constitution, providing for the creation of the office, may be attached to a temporary office. Such is not the law. Section 10, art. 17, of the Constitution is amended by what is known as amendment No. 4 to read as follows: "The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and excessive charges by railroads, canals and turnpike companies for transporting freight and passengers, and shall provide for enforcing such laws by adequate penalties and forfeitures, and shall provide for the creation of such offices and commissions and vest in them such authority as shall be necessary to carry into effect the powers hereby conferred." The amendment consists in adding the words offices and commissions and vest in them such "And shall provide for the creation of such authority as shall be necessary to carry into effect the powers hereby conferred." Pursuant to this amendment, the Legislature of 1899 created the Railroad Commission of Arkansas, and defined its duties in accordance with the mandate of the Constitu tion. Three members were provided for and the office was made elective. The Legislature of 1919 created the Arkansas Corporation Commission. Section 1 provides that it is created for 30 years, and that it shall consist of three members, who shall be elected by the people. The act gives the commission jurisdiction to regulate the rates of all public utilities in the state. Section 31 provides in express terms that the present Railroad Commission shall be abolished, and that the Corporation Commission shall exercise all the powers and duties possessed by the Railroad Commission. In short, the Legislature expressly abolished the Railroad Commission and transferred its duties to the Corporation Commission, which the Legislature expressly declares is created for 30 years; and which, as we have already "We are of the opinion, therefore, that this provision of the Constitution, when rightly interpreted, constitutes a command to the Legislature, with authority to determine when temporary offices are needed, and that the determination of that question by the Legislature will be observed by the courts. It would be a usurpation of power by the courts to assume authority which had been delegated to the Legislature it-seen, must, according to the previous deci self." If the section of the Constitution as declared by the court in the language just quoted constitutes a command to the Legislature, sions of this court be a temporary office. It will be observed that it is the amendment to the Constitution which commands the Legislature to provide for an office or commission to carry into effect the powers conferred in the amendment, and these powers are enumerated. The Legislature could give the office a different name and vary the duties as by increasing or lessening the penalties, but the office itself being expressly provided for in the Constitution, when created, becomes a constitutional office; and its duties, being expressly and specifically provided for in the Constitution itself, cannot be enlarged, diminished, or taken away by the Legislature. If this were not so and the office could be abolished and the duties attached to another office, then the authority of the Constitution would be subject to the authority of the Legislature. The grant of the office is expressly fixed by the Constitution, its duties are specifically prescribed by the Constitution, and there is necessarily an implied prohibition against interfering with it in these respects. The effect of the majority opinion is to change by act of the General Assembly that which is ordained by the Constitution. The Legislature must act in subordination to the Constitution; and it does not do so, if it can abolish a constitutional office with defined duties and attach those duties to a temporary office. It would at least be a very vain and idle provision of a Constitution to secure to the people in mandatory terms an office or commission and to specifically define its duties, and at the same time leave it to the Legislature to abolish the office, or to attach its duties to a statutory office which might be abolished at any time. Such an intention should not be ascribed to the people in adopting the amendment in question. In short, when the Constitution expressly provides for an office and in specific terms defines its powers and duties, the Legislature is powerless to abolish, modify, enlarge, or diminish that which is established by the paramount law of the land. In recognition of this principle, in Smith v. Askew, 48 Ark. 82, 2 S. W. 349, the court held that the Legislature was powerless to enlarge or abridge the constitutional term of an office, and that any attempt to do so would be a plain usurpation. The principle was also recognized in Falconer v. Shores, 37 Ark. 386, where the court held that the office of collector of taxes was under legislative control because the Constitution provided that the sheriff should be collector of taxes until otherwise provided by law. In the Board of Equalization Cases, 49 Ark. 518, 6 S. W. 1, the court said that the office of assessor was a constitutional office, and that the Legislature could not abolish or make it a sinecure, for that would make the selection of the officer-a right guaranteed to the electors—an empty form. It was further held that the duties of the office might be varied by the Legislature because the Constitution creating the office provid ed that he might discharge "such duties as are now or may be prescribed by law." Again in Hutton, Collector, v. King, 134 Ark. 463, 205 S. W. 296, an assessment statute which-provided for two taxpayers to assist the assessor in making assessments was sustained on the theory that the act allowed the assessor to participate in making the primary assessment, and that because the provision of the Constitution providing for the office of assessor did not define its duties, but left it to the Legislature to define them, the act was not unconstitutional. Judge WOOD and the writer dissented in that case on the ground that the office of assessor existed and its duties were well known. at the time of the adoption of the Constitution, and that the framers of that instrument evidently intended that the assessor should make the primary or original assessment. We recognized the principle laid down in Hutton, Collector, v. King, supra, that unless the Constitution otherwise expressly provides the Legislature has power to increase or vary the duties of an office; but, when the Constitution defines in specific terms the duties of an office, it has spoken, and to allow the Legislature to change or vary those duties would be to make the creator yield to its creature. It is equally well settled that every constitutional officer derives his power from the Constitution, and that, where the Constitution specifically defines his powers and duties, it is not within the power of the Legislature to change or add to them unless the power to do so is expressly or by necessary implication conferred by the Constitution itself. Cooley on Constitutional Limitation (7th Ed.) p. 98, and State v. Douglass, 33 Nev. 92, 110 Pac. 177. The result of our views is that the Legislature under the authority of Greer v. Merchants' & Mechanics' Bank, supra, might have created the Arkansas Corporation Commission with power to regulate water, gas, street car, and telephone companies, and might have transferred to it the duties of any or all of the commissions now constituting a part of the executive department of the state except that of Railroad Commissioners. In regard to that office, or commission, as above stated, it could only change the name and vary the duties within the limits prescribed in the amendment to the Constitution providing for the office; but, because the Constitution has specifically defined its duties, the Legislature cannot abolish the office, nor add to it other duties than the power to carry into effect the laws passed to correct abuses and prevent unjust discrimination and excessive charges by railroads, canals, and turnpike companies, nor can it abridge the duties of the office or commission in respect |