BOARD OF REVENUE OF
JEFFERSON COUNTY ET AL.
Supreme Court of Alabama.
Nov. 10, 1904.
Appeal from Chancery Court, Jefferson County; John C. Carmichael, Chancellor.
Suit by Edward C. Crow against the board of revenue of Jefferson county and others. From a decree granting the relief prayed for, defendants appeal. Affirmed.
The bill in this case was filed by the appellee, Edward C. Crow, a resident citizen and taxpayer of the county of Jefferson, state of Alabama, against the appellees, the board of revenue for Jefferson county and the president of said board, for the purpose of testing the constitutionality of an act of the Legislature approved October 12, 1903 (Acts 1903, p. 566), to amend certain sections of the Code of Alabama relating to the judiciary system of the state, and which resulted in rearranging the counties of the state into different circuits. This act of the Legislature, the title and substance of which are set forth in the opinion, provided, among other things, that the Tenth Judicial Circuit should be composed of Jefferson county, and that there should be two judges for said circuit. The bill filed by the complainant averred that under the provisions of said act it would be necessary to provide an extra courtroom for the additional judge whose office was created by said act, and to purchase additional stationery and other things necessary for the discharge of the duties of said office; that the board of revenue of Jefferson county, by resolution, was proceeding to provide for such additional courtroom and the necessary furniture and stationery for the newly created judge of the Tenth Judicial Circuit, and that the result of such action on the part of the board of revenue would be to place additional burdens upon the taxpayers of said county. It was then averred that said act of the Legislature was invalid and void, because it was not passed as required by the Constitution; and that, even if said act was passed as required by the Constitution, the Legislature was without power to provide for two judges in the Tenth Judicial Circuit, which is in violation of section 142 of the Constitution of 1901.
McCLELLAN, C. J.
In the House of Representatives of the Legislature of 1903 there was introduced and by it passed a bill to be entitled "An act to amend sections 897, 898, 900, 914, 915, 916, 917 of article 1, chapter 19 of the Code of Alabama." This bill coming into the Senate, that body adopted a substitute for it, then adopted some amendments to this substitute, then passed the bill as amended by the substitute as amended, and thereupon returned the bill to the House, with a message that: "The Senate has amended as therein shown, and, as amended, has passed the following House Bill: H. 763. To amend sections 897, 898, 900, 914, 915, 916, 917 of Article 1 of Chapter 19 of the Code of Alabama." The action taken by the House upon this Senate message is shown by the following entry in its journals: "The House proceeded to the consideration of the Senate message: And the House non-concurred in the Senate amendments to bill, H. 763, the title of which is set out in the above and foregoing message from the Senate, and requested a committee of conference thereon. Committee on part of the House: Messrs. Lusk, Foster, of Tuscaloosa, and Benners." Of this action the Senate was duly informed by a message from the House, and thereupon the Senate, as its journals show, "insisted on its amendment to the House Bill 763 [the title of which is set out in the foregoing message from the House] and acceded to the request of the House for a committee of conference thereon. The president pro tem. appointed as the committee on the part of the Senate Messrs. Spraggins, Frazer and Nesmith." Thus is shown disagreement of the Senate and House on this House bill 763, the raising of a committee of conference between the two houses, and the submission of this disagreement to that committee. It is in due course of the discussion to set forth here the nature of the bill upon which this disagreement arose, and the character and scope of the disagreement. As the bill passed the House and went into the Senate it amended section 897 of the Code of 1896, which section divided the state into 13 judicial circuits, by increasing the number of circuits to 17, the addition being of circuits to be numbered 14, 15, 16, and 17, and apportioned the counties of the state to and among these 17 circuits. It also amended section 898, having reference to the places of holding circuit courts; section 900, as to the times of holding courts in the several counties of the several circuits; section 914, as to special terms; section 915, as to notice of special terms, order of business, etc.; section 916, relating to witnesses and process; and 917, relating to adjourned terms. One change wrought by the House bill in section 897 was to take the counties of Limestone and Madison out of the Eighth Circuit and to constitute of them a new circuit, numbered 16, leaving in the Eighth Circuit the counties of Cullman, Lawrence, and Morgan. This section of the House bill was amended by the Senate in two particulars: First, by taking Lawrence county out of the Eighth Circuit, and putting it in the Sixteenth; and, second, by providing for another circuit in addition to those added by the House bill, to be the Eighteenth Circuit, and to be composed of the counties of Clay, Cleburne, and Randolph. Many and material amendments other than the two just referred to were adopted by the Senate to other sections of the House bill by its substitute therefor and its amendments of its substitute. These other amendments had reference in the main to the time for holding courts in several of the circuits; but there were others, providing, for example, that no grand jury should be organized for the circuit court of Montgomery "unless in the opinion of the presiding judge the public good requires it"; that "the solicitor of the Ninth Circuit now residing in the territory constituting the Seventeenth Judicial Circuit under this act shall discharge and perform the duties of solicitor therein until his successor is elected and qualified"; that "the judge of the Ninth Circuit as it now exists by law shall hold court and perform all other duties now required by law in such circuit until the general election in 1904, at which election there shall be elected a judge for the Ninth and Seventeenth Circuits who shall take charge of their offices as provided by law"; that in the event of the establishment of the circuit court of Jefferson county, as provided in House bill 967, consolidating the several courts of that county, etc., this act, in so far as it relates to the Tenth Circuit, shall not go into effect, etc.
Having thus in mind, in a general way, the provisions of the House bill when it went to the Senate, and the nature of the amendments of it adopted by the Senate, we recur to the journals of the houses for the proceedings and reports of the members of the conference committee, and for the proceedings of the respective houses thereon. The Senate journal shows two such reports, as follows:
"Report of a Conference Committee. Mr. Spraggins submitted the following report: 'Mr. President: We, the undersigned as a majority of the committee of conference on the disagreement of the two houses on the substitute by the senate for the house bill. H. 763. To amend sections 897, 898, 900, 914, 915, 916, 917 of Article 1 of Chapter 19 of the Code of Alabama, beg leave to report that they recommend that the senate recede from its amendment adding the Eighteenth Judicial circuit and from the amendment taking Lawrence county out of the eighth circuit and putting it in the sixteenth circuit. Respectfully submitted, Robert E. Spraggins, of the committee on the part of the Senate. J. A. Lusk, J. M. Foster, Augustus Benners, Committee on part of the House.'In the further proceedings in the Senate, the report signed by Senator Spraggins and the members on the part of the House of the conference committee was styled and treated as the "majority report," and that signed by Senators Nesmith and Frazer the "minority report," of the committee. On the coming in of the reports a motion was made to substitute the minority report for the majority report. This motion was lost, and thereupon "the Senate concurred in the report made by the majority of the committee," the yeas and nays being entered upon the journals.
"Minority Report. 'Mr. President: We, the undersigned members of the committee of conference on the disagreement of the two houses on the senate substitute for the House Bill H. 763, To amend sections 897, 898, 900, 914, 915, 916, 917 of Article 1 of Chapter 19 of the Code of Alabama, report that we recommend that the Senate do not recede from the amendments to the substitute. Respectfully submitted, C. C. Nesmith, Tom S. Frazer, Of the Committee on part of the Senate.' "
On the House journal are the following entries:
"Report of Committee of Conference. The following report was submitted by the House chairman of the Committee of Conference. Majority report of conference committee: 'The undersigned as a minority of the Senate Conference Committee on the substitute for House Bill No. 763, and the House Committee beg leave to report that they recommend that the senate recede from its amendment adding the eighteenth judicial circuit, and from its amendment taking Lawrence county out of the eighth circuit and putting it in the sixteenth circuit. Robert E. Spraggins, On part of the Senate. J. A. Lusk, J. M. Foster, A. Benners, On part of the House.'The names of those voting are set out on the journal.
"Minority Report. 'We, the undersigned members of the Conference Committee on House Bill 763 report that we recommend that the senate do not recede from the amendments to the substitute. C. C. Nesmith, Tom S. Frazer.'
"On motion of Mr. Lusk, the majority report of the committee of conference was concurred in. Yeas 37, nays 20."
It further appears from the journals that the bill as enrolled and signed by the Speaker of the House and the President of the Senate contained all the amendments made by the Senate to the House bill except the two referred to in the reports of the conferees creating the Eighteenth Circuit and transferring Lawrence county from the Eighth to the Sixteenth Circuit, respectively; and it was the bill as thus enrolled which was approved by the Governor.
On the foregoing statements as to House bill 763 and as to the amendments of that bill by the Senate, and the foregoing excerpts from the journals of the two houses, the question for decision in this case is: Did the House concur in the Senate amendments to the bill? By the phrase "the Senate amendments," as here employed, we mean all the amendments to or changes of the House bill effected by the adoption of the Senate substitute and by the subsequent adoption of amendments to the Senate substitute other than and except the amendment creating the Eighteenth Circuit and the amendment transferring Lawrence county from the Eighth to the Sixteenth Circuit, proceeding, as we do in this connection, upon the assumption that the Senate receded from those two amendments. Such are the facts upon which the case is presented, and such is the question for decision.
The law applicable to these facts and by which this question is to be determined is embodied in section 64 of the Constitution, as follows: "No amendment to bills shall be adopted except by a majority of the house wherein the same is offered, nor unless the amendment with the names of those voting for and against the same shall be entered at length on the journal of the house in which the same is adopted, and no amendment to bills by one house shall be concurred in by the other, unless a vote be taken by yeas and nays, and the names of the members voting for and against the same be recorded at length on the journal; and no report of a committee of conference shall be adopted in either house, except upon a vote taken by yeas and nays, and entered on the journal, as herein provided for the adoption of amendments." There is no pretense that the House, by a yea and nay vote, entered on its journal, concurred in any of the Senate amendments to this bill, under and in conformity to the second provision of this section that "no amendment to bills by one house shall be concurred in by the other" except by yea and nay vote entered on the journal. To the contrary, the House journal, as we have seen, shows quite the reverse to be the fact. It not only shows no such, nor any, concurrence, but it affirmatively and expressly shows that the House nonconcurred in all the Senate amendments. This vote of nonconcurrence was never reconsidered by the House. It stands to-day as the action of the House on those amendments, unless it can be said that the House subsequently concurred in these amendments, its original vote of nonconcurrence to the contrary notwithstanding, by adopting the report of a conference committee recommending concurrence, under and in conformity to the last clause of section 64, providing that "no report of a committee of conference shall be adopted in either house, except upon a vote taken by yeas and nays and entered on the journal as herein provided for the adoption of amendments." It has, indeed, been mooted in this and other jurisdictions whether amendments adopted by one house and disagreed to by the other, with request for conference, could be constitutionally concurred in by the disagreeing house by the adoption of a conference report recommending such concurrence; the insistence being that under the second provision of section 64, or like provisions in other Constitutions, that house should rescind its vote of nonconcurrence, and then comply with the recommendation of the committee by a direct vote upon and concurring in the amendments themselves; but it has been adjudged that a vote adopting such a report of a conference committee is in itself a vote of concurrence in the amendments which it recommends concurrence in. State v. Buckley's Distributees, 54 Ala. 599; Ex parte Howard-Harrison Iron Co., 119 Ala. 484, 24 South. 516, 72 Am. St. Rep. 928; Browning v. Powers (Mo. Sup.) 38 S. W. 943. To attain that end, however, in respect of the Senate amendments to this bill by this method of procedure, to effectuate concurrence therein by the adoption by the House of a report of the conference committee, it was absolutely essential that such report should have recommended concurrence by the House in the Senate amendments. Nobody questions this proposition. Counsel for appellants confess its soundness. In the nature of things, it is clear beyond cavil. The adoption of a report cannot be the adoption of anything not embraced in the report. As has appeared, the reports from this committee, which were adopted by the Senate and House, respectively, referred only to certain two of the Senate amendments, and to these for the purpose only of recommending rescission from them by the Senate. Neither the report made to the Senate nor that made to the House by the majority of the members of the joint committee recommended that the House concur in anything. In neither is there the slightest reference to the other Senate amendments. Absolutely no action by the House is recommended, suggested, or referred to in either of them. And so of the accompanying reports of two of the Senate conferees. They too relate alone and exclusively to the two Senate amendments, which only are referred to in the reports which were adopted. It cannot be got from any one of the reports, or from all of them, that the conference committee even considered any other than these two amendments. It cannot be got from any one or from all the reports that the committee, or any of its members, intended to recommend concurrence by the House in the numerous other Senate amendments, or in any of them. This would seem to be decisive of the question before us, and the end of this case. But just here is interjected the main, indeed the only, contention of the appellants in support of the integrity of this act.
While fully confessing that the reports contain no express recommendation as to concurrence in the Senate amendments, nor any sort of reference thereto, counsel for appellants insist that we should read a recommendation of concurrence into the report adopted by the House by implication from the submission to the committee, and the situation upon which it acted. We may concede the application of the doctrine of implication to the report of a conference committee, and the enlargement thereby of the scope of the report beyond its letter; but, to have such effect, the implication must be a necessary one. It must be one that is necessary to the effectuation of the intent which is expressed in the report, and without according operation to which the purpose expressed in the report could not be accomplished. If what is expressed may be accomplished without extending the language by implication beyond its own terms, to so extend it could not be said to be necessary, and it could not be so extended with requisite certainty and assurance that thereby the effect of the report has not been extended, also, beyond the intention of the conferees. For the court to apply the doctrine of implication in such a case would be for the court to put into the report something which the makers of it not only have not expressed, but which, also, there is no certainty that they intended should be covered by it--would be not to interpret or construe a report made by the committee, but to make a report for the committee; and to hold that the House then acted not upon the report before it, but upon the report we now make--to read into what they did say something which they obviously and confessedly did not say; and all this because we may be, in greater or less degree of conviction, of the opinion, based upon the probabilities of the situation, that they intended the report to have larger operation than its terms import, to say something which they have not said, and to recommend action which they have not recommended. Other judges might be of different opinion, and, though all judges and all courts for all time should concur in that opinion, it would yet be founded upon what appears to us to be the probabilities in the premises, and never attain that certainty as to what provisions the two houses have concurred in enacting into law which the Constitution undoubtedly requires. For, if the Constitution makers may be said to have been more careful and particular and precise in any one thing more than any other relating to legislative procedure, it is in this very matter of certainty as to the agreement of the houses upon the contents of bills, and especially to the end that there should be no room for doubt or mere inference or inconclusive implication as to what amendments to bills in their legislative course have received the sanction of both houses. The recent convention, appreciating the possibility disclosed in the case of Ex parte Howard-Harrison Iron Co., supra, of an amendment by one house being incorporated into an act without actual concurrence therein by the other house, and to eliminate even that possibility of provisions being enacted into law upon which both houses had not in fact concurred, added a new provision in section 64, requiring all amendments to be spread upon the journals. Now, it must not only affirmatively appear upon the journals that provisions of an act which were put into the bill by amendment received the concurrence by yea and nay vote of each house, but it must also appear upon the journals precisely what those amendments were. The purpose of the convention in the ordination of that section manifestly was that only amendments which are set out on the journals, and which the journals affirmatively show received the sanction of each house, should be incorporated in the bill; and the provisions of that section are apt to the effectuation of that purpose. They require the fact of concurrence of one house in an amendment adopted by the other to appear with affirmative certainty. They leave nothing to inference, nothing to conjecture, nothing to inconclusive implication. If concurrence is not shown with certainty, it is not shown at all. If there is only a probability, even in the highest degree, that concurrence was had, it has not been had. If the action taken can be said to be concurrence only by inconclusive implication, it cannot be said to be concurrence at all. The implication insisted on here for appellants is of this character. It is an inconclusive implication. It is not certain. It is not a necessary implication upon the report made, and the situation disclosed by the journal on which the committee acted. The argument proceeds thus: There was disagreement between the houses on all the amendments adopted by the Senate to House bill 763. The whole matter of this disagreement was referred to the conference committee. The purpose of this reference was that the committee should, if it could, agree upon and report what the houses should do in settlement of the disagreement. The committee, having the matter thus before them, made a report. That report did not in terms declare that it was to be a settlement of the whole disagreement; but for that the whole matter was submitted to them to report a full settlement, if they could so agree, the report must be read to recommend as a settlement that the Senate recede from certain two of its amendments (which is the sole thing expressly recommended by the report), and by implication that the House concur in the other amendments. But the argument falls to pieces just here: The committee was not bound to recommend a settlement of the whole disagreement. It was perfectly competent for them to agree as to a part of the matters in controversy, and to report as to that part, disagreeing and making no report as to the other part. It is by no means a necessary implication from their recommendation that the Senate should recede from certain two of the amendments that they also agreed that the House should concur in the others, and by the report as to the two intended to recommend that the House should so concur. This recommendation of Senate recession from one thing certainly was not a recommendation of House concurrence in other things; and there was nothing in the situation upon which they acted affording a necessary and certain implication that they intended also to recommend House concurrence in other things. They may well have been unable to agree as to the other amendments, and those of the committee who favored concurrence may have hoped that, those two being eliminated by the adoption of their report, the House itself would take independent action on the others by rescinding its vote of nonconcurrence in them, or that another conference committee would be raised, which could agree upon a settlement of the whole disagreement, while those of the committee who opposed all the amendments were content with a report which, if adopted, destroyed some of the amendments, and left them opportunity to oppose the others in the House. And so, too, the House might well have understood the report. We cannot say there is no basis for affirming, with assurance of certainty, that members of either the Senate or the House, in voting to adopt this report, had any other purpose in view than the recession of the Senate from the two amendments referred to in the report. The Senate, previously insisting on all its amendments, did nothing by this vote further than to withdraw its insistence so far as these two were concerned, and consent to their being eliminated. Members of the House may well have voted for the report, to get rid of two of the many amendments, to all of which they were opposed, without intending to retrace, and without having at all in mind that they were thereby retracing, their action on the others, and without intending to consent to their incorporation in the act, but, to the contrary, having it still in mind to persist in their opposition to them.
It is suggested by counsel that it is inferable from the journals that, of the Senate amendments, that creating an Eighteenth Circuit, and that transferring Lawrence county from the Eighth to the Sixteenth Circuit, were regarded as the important amendments made by the Senate, and constituted in reality the "bone of contention" between the houses, and that the other amendments were of secondary importance, and really unobjectionable to the House, but were embraced in the vote of nonconcurrence only because that was the most convenient and expeditious method of reaching a basis of settlement; it being the last day of the session, and little time for action being left. All this may be true. It seems, indeed, not improbable. But it only leads to the conclusion that, while the House deemed these other amendments of sufficient importance to be nonconcurred in, or for other reason in fact did nonconcur in them, they were never afterwards in the minds of either the conferees or the members of the House, so that the former made no recommendation as to them, and the latter took no action upon them. However unimportant and secondary these amendments may have been in the estimation of the conferees and of the members, a status of legislative nonexistence had been given them by the vote of the House; and, without revivifying affirmative action, which was never had, they continued nonexistent. Though so unimportant as to fail after nonconcurrence to challenge the attention of the committee and of the House, they were material amendments of the House bill; and, so long as the legislative situation involved adoption of them by the Senate, and dissent from them by the House, there was and could be no constitutional concurrence of the two houses in the enactment of that bill with or without them. That situation transpired upon the nonconcurrence of the House in the Senate's adoption of them, and it continues to this day. If the House really favored these other amendments, it is unfortunate indeed that they should have been sent to, and inadvertently allowed to remain in, the committee of conference.
We have said that a conference report may be enlarged beyond its letter by necessary implication, and that thereby is meant that a thing which, though not expressed in the report, is yet necessary to be done to consummate the purpose which is expressed, the report, by implication, covers that thing, and the adoption of the report is, by implication, the adoption of that thing. The point may be made clearer by illustration: If this report had recommended that the Senate substitute for House bill 763 should become law, or should be enacted, or should pass, or some equivalent phrase, with the amendments as to the Eighteenth Circuit and Lawrence county eliminated, the necessary implication would have been that the Senate recede from those amendments, and the House concur in all the others; and the adoption by the houses of the report would by necessary implication have been a recession by the Senate as to those amendments, and a concurrence by the House in the others. So, too, possibly, if the report had set forth that the committee, as and for a full settlement of the whole disagreement between the houses, recommended that the Senate recede from two certain amendments, the adoption of that report might, by necessary implication, have involved recession by the Senate from those amendments, and concurrence by the House in the others, since without such action there could be no full settlement of the whole disagreement. But the report made was not of this sort. From its terms, read in connection with the situation, nobody can know, and it cannot be affirmed, that the committee intended to recommend concurrence by the House, or that the House understood that its adoption was concurrence.
The fact of concurrence by the House must appear on its journal by yea and nay vote. It cannot be shown in any other way. It cannot exist in any other way. Hence, if it be conceded that this bill was, to the knowledge of the House, enrolled as having been enacted with these amendments in it, and that no dissent was made, no presumption of valid enactment arose therefrom. If that could be allowed, all the procedure prescribed by the Constitution could be wholly disregarded. There are presumptions which attend a bill which has been signed by the presiding officers and approved by the Governor, but they do not obtain in respect of any matter which the Constitution requires to affirmatively appear on the journals. The supposition of the members of the Legislature that they have adopted, or of the two houses that they have concurred in the adoption of, an amendment, cannot take the place of a yea and nay vote entered on the journals.
We are not impressed by the argument that the House must have intended concurrence in the other amendments by voting for a report which in terms recommended only that the Senate recede from two specified amendments, because, it is said, to accomplish only that recession it was not necessary for the House to vote at all, and unless it intended something more than that, viz., concurrence in the other amendments, its action was vain, useless, and foolish. Now, we cannot affirm that the House would not have done a vain and useless, and therefore foolish, thing. No man or body of men is immune from that sort of action. And hence, granting the premises of this argument, the conclusion stated is not demonstrated. The consideration, standing alone, might tend to the conclusion that the House intended something more than mere concurrence in the Senate's recession, but it would not enforce that conclusion with the certainty that is requisite here. But it does not stand alone. There is another consideration which deprives it of even evidential force, and that is that, as shown by its journal, it was the practice and custom of this house to vote on all conference reports, whether they recommended, expressly or by necessary implication, action by both houses, or action by the Senate alone.
Moreover, we are not prepared to say that it is a vain, useless, and foolish thing for the House to adopt the report of a conference committee which recommends only that the Senate recede from an amendment which it has made to a House bill. To the contrary, it would seem that such adoption is necessary to get the amendment out of the bill. Such bill is in the House. The Senate has lost control of it, and is powerless, so long as it remains in the House, to amend it by striking out an amendment it has ingrafted upon. So long as this situation obtains, the only way for the Senate to recede from such amendment is with the consent of the House, and by the adoption of a conference report recommending it, and like adoption by the House is the recognized mode of evidencing the consent of the House to recession by the Senate. Indeed, we think it may be said generally that nothing can be accomplished through or by a conference report unless both houses adopt it. So we conclude that the fact that the House also adopted this report proves nothing, nor tends to prove anything, beyond its concurrence in the Senate's recession from the two specified amendments.
It is claimed for appellants that the case of Abernathy v. State, 78 Ala. 411, has a bearing on the question here favorable to their position. This question, nor any like it, was raised, discussed, or decided in that case. In the opinion, however, there is a statement as to what the report of a conference committee recommended, etc., which gives to that report some similitude to this one, and it appears that legislative action beyond the express terms of the report, as stated by the court, was had and upheld as valid; but the journals of that Legislature demonstrate that this action which might appear from the opinion to have resulted from the adoption of the report was in fact taken before the conference was requested, and was effected by votes of the Senate amending a House amendment, and then adopting it as amended. The proceeding may have been anomalous, but it was not open to the objections made here.
We believe we have discussed all the positions taken by counsel in support of the claim that this bill, as signed and approved, became a valid enactment, and we have stated the facts and considerations which have constrained us to the conclusion that it was never constitutionally passed by the Legislature; and this opinion might properly end here. But it is thought that one other point made by the bill of complaint should be discussed in a tentative way. That point is that the conference committee made no report at all on House bill 763. There are, as we have seen, only two ways by which one house can concur in amendments adopted by the other. One is by yea and nay vote of concurrence; the other, by adopting by yea and nay vote the "report of a committee of conference" which recommends concurrence. Const. § 64; State v. Buckley's Distributees, supra; Ex parte Howard-Harrison Co., supra. Now, by all the authorities, and in the nature of things, a report of a conference committee must be one in which a majority of the conferees of each house concurs, for a conference committee is essentially two distinct committees, each of which acts by a majority, and its "report must be signed by a majority of the members of each house composing the committee." Const. Manual & Dig. p. 314; Cushing, Par. Law. This sort of report--the only report, indeed, which can be said to be the report of a conference committee--must have been intended by the constitutional convention in the ordination of section 64; and it would seem, therefore, to be the only sort of report to constitute a basis for concurrence in amendments under the last clause of that section. Of course, the dissenting house could, upon the failure of a conference committee to make this sort of report, reconsider its vote of nonconcurrence, and thereupon, by yea and nay vote, as provided in the second clause of section 64, upon the amendments themselves, concur in them; but it would seem that upon such failure that course is the only one by which the house could concur. No report of a conference committee was made to either house in this instance. One report made to each house was signed by all the House members of the dual committee, and by a minority of the Senate conferees; and the other report made to each house was signed by a majority of the Senate conferees, and by none of the House members. The reports which were adopted by the Senate and House, respectively, show that only one of the three Senate conferees concurred in them. We use the plural in this connection, because what are styled "majority reports" on the journals of the two houses are not identical in language. We decide nothing on this point, but it seems to us at least open to grave doubt whether, even had these so-called majority reports recommended that action, the houses, by adopting them, would constitutionally have eliminated the two specified Senate amendments, and concurred in the others.
The decree of the chancery court overruling the demurrers to and the motion for want of equity to dismiss the bill of complaint, proceeding, as it did, upon the ground that this bill, signed, approved, and published as an act, was not passed by the Legislature, must be affirmed.