The Birmingham age-herald., 1906-07-03

to the validity of the state railroad com mission act. called in question in an opin- ion written by former Attorney General Martin, is given below in full, with all citations of law A few days ago Speak CT A. M Tunstall of the last legislature said that the very authorities cited by AIr. Martin were followed in doing with the bill just what was done by the ofh- eers of the house, and about which MT. Martin finds no objection. He said that what was done was the plain duty of the clerk and the only thing that could be done. The letter follows:
 State of Alabama, Massey Wilson, At torney General, Montgomery, Ala. June 30, l906-Hon. B. B. Conner, President Rail- road Commission. Capitol: Dear Sir beg to acknowledge your communication of the 20th inst. asking my opinion of the validity of the act entitled an act to amend chapter 96 of the code of Ala bama of 1906 approved February 2S 1908, which act confers upon the railroad com mission the power to fix rates.
 sfhe ground upon which the validity of the act Is questioned Is the alleged failure of the House Journal to affirma- lively show that the bill was acted upon in session by the standing coqlmittee, to which it had been referred and returned by the committee to the House. The House Journal must affrmatively show, among other things. that the standing committee 10 which the bill was com mtted acted upon it and returned 1t to the house. Constitution, Sec. 62l. These essentials are shown only by the follow ing entry upon the House Journal: Upon an examination and investigation made this November '. 1908. of the original re- port on standing committees house reg ister, documents and records of the house, from which this journal is complied and transcribed. 1t appearing that house bill No A7. a bill to be entitled an act to amend chapter ninety-siX (96) of the code of Alabama of 1896, was returned to the house by the committee on commerce and carriers with the following report The bill was acted upon by the committee on commerce and common carriers in session and ordered reported adversely George H. Parker. chairman. Said return to the house of said bill and the action of the committee thereon in session is now entered and made part of this journal
 How It Was Recorded.
 The matter above quoted was recorded on the journal by the clerk of the house after the final adjournment of the legis- lature. but before the journal left the possession. custody and control of the clerk, and before it had been signed by the speaker, attested by the clerk and deposited with the secretary of state. The question to be determined is whether or not this entry is to be treated as a part of the journal. If 1t is part of the journal the act is not subject to the infirmaty charged against it; if it is not a part of the journal the bill was never constitutionally enacted
 MT Gushing, in speaking of the du- ties of the clerk of the house of com mons says At the end of the session 1t is the business of the clerk to see that the journal of the session is prop erly prepared, and fairly transcribed. from the minute books. the printed votes and the original papers that have been laid before the house. (9th Ed. Sec 320. Again, speaking of legislative bodies in general the same author says: Where the practice prevails of taking minutes of the votes and proceedings in the first instance and of making up the journal therefrom afterward, the former must be considered as bearing the same analogy to the latter that the docket of the clerk of a judicial court bears to the complete record The votes and proceedings are usually printed from day to day for the use and convenience of the members, but when the journal comes to be made up, if there Is any discrepancy between the two, the journals are held to be correct (Sec. 429).
 'The practice in this state is for the clerk and his assistant to attend at the desk and keep an account of the trans actions of the house on separate sheets of paper. using for this purpose minutes made by himself original reports, original messages, printed roll calls, printed docu- ments and rubber stamp forms These sheets of paper are fastened together at the end of each days session, and con sttute the journal of that day. The mat ter thus compiled Is afterwards recorded in bound volumes constitute the official journal The recording of the journal in these records is never completed at the time the house finally adjourns. It is physically impossible for 1t to be com pleted at the time of adjournment. The clerk not only has the right, but 1t is his duty, to correctly record the journal in these records. In the case of Montgom- cry, etc, vs. Gaston, 126 Ala, 426, by re- ference to the original transcript it will be seen that the clerks compilation of the journal on sheets of paper as before de- scribed, which was approved by the jour nal committee, was not recorded until after the final adjournment of the legisla ture. This compilation was correct. The error was in the recording on the final record which was done by the clerk after the final adjournment The court held that the recorded journal-recorded after final ournment-controlled. The court held further that after the journal had been signed by the speaker and attested by the clerk, and deposited with the secretary of state, the clerk had no fur ther control over it. The effect of the decision Is that after adjournment and before the journal is signed and deposited with the secretary of state. the clerk may correctly record his manuscript in the final record which constitutes the official journal If he may so record it. he may certainly correct any errors in parts of it heretofore recorded. Neither the house nor the journal committee ever sees the recorded journal, which the court treats as the official journal. They pass only on the clerks manuscript. The clerk alone attends to the recording of the jornal and with us. as the above extrac. from Gushing shows in the case of the house of commons of England, if there is conflict between the clerks manuscript and the journal, as finally transcribed by him in the record, the latter governs. The following extract from the opinion in the case above cited shows the court was careful in that case not to hold that the clerk could not correct the record after adjournment, but before the records had passed out of his possession:
 Clerks Duty Ceases.
 '1t cannot be doubted we think. and indeed 1t is quite obvious, that the clerks official connection with the original jour nal-except the duty of copying it for the printer-ceases upon his delivering 1t to the secretary of state for safe keeping, after 1t has been signed by the speaker and himself. From and after that time be has no custody of it. no control over