adjournment, prevent its return, in which case, the Governor disapproved said item, writing it shall become a law unless he shall file it with across it the words, "vetoed and disapprovhis objections in the office of the secretary of state and give notice thereof by a public procla- ed," and on the same day the bill was signmation within 20 days after adjournment. Sec- ed by the Governor following the notation tion 17 declares that the Governor shall have "approved, except as to the items above vepower to disapprove any item or items in any toed and disapproved." The bill as signed appropriation bill embracing distinct items, and such parts shall be void unless repassed accord- was on the 27th day of March, 1915, filed in ing to the rules prescribed for passage of the office of the secretary of state. other bills over the executive veto. An appropriation bill containing several items was presented to the Governor after the adjournment of the General Assembly. Held, that in disapproving particular items he is bound to comply with the provisions of section 15 requiring the filing of objections with the bill and the giving notice thereof by public proclamation. It is contended for appellant that the action of the Governor in disapproving the separate items appropriated in the act, met the constitutional requirements, and that the bill as signed became the law, excluding the items of appropriation disapproved which became void. The appellee, on the other hand, contends that the attempted disapproval and VETO BY veto of the distinct item of appropriation was ineffectual because of the alleged failure of the Governor to file the bill with his objections in the office of the secretary of state and give notice thereof by public proclamation within 20 days after the adjournment of the General Assembly. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 35; Dec. Dig. 32.] 2. STATUTES 32 ENACTMENT GOVERNOR. Where the Governor, who wrote "vetoed and disapproved" across items of an appropriation bill, signed the entire bill with a notation, "approved except as to items above vetoed and disapproved," and then filed it, there was a sufficient filing of his objections thereto, there being no requirement in section 15 that the objections be written separately or upon a different instrument. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 35; Dec. Dig. 32.] 3. STATUTES 33- ENACTMENT VETO BY GOVERNOR "PROCLAMATION." As the word "proclamation" used in section 15 means the act of proclaiming or publishing, a formal declaration, an avowal, as well as an official public notification by some executive authority of an event of importance to the public, the filing of such appropriation bill with the secretary of state where is was accessible to the public, was a sufficient proclamation of the veto of the separate items. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 36; Dec. Dig. 33. For other definitions, see Words and Phrases, First and Second Series, Proclamation.] Hart and Smith, JJ., dissenting in part. Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge. Action by John H. Page, Commissioner of Mines, Manufacture and Agriculture, against M. F. Dickinson, Auditor. From a judgment for petitioner, defendant appeals. Reversed and remanded. Wallace Davis, Atty. Gen., and W. J. Terry, of Little Rock, for appellant. Mehaffy, Reid & Mehaffy and Hal L. Norwood, all of Little Rock, for appellee. KIRBY, J. This appeal challenges the validity of the veto of the Governor of certain separate items in Act No. 277 of the General Assembly of 1915, appropriating funds for the maintenance of the office of the commissioner of mines, manufactures and agriculture. The bill as passed contained the following: "Item No. 10. For postage and express $2,000." The bill, including said item, was presented to the Governor for his approval on March 18, 1915, 7 days after the adjournment of the General Assembly, and on March 25, 1915, Article 6, sections 16 and 17, of the present Constitution of 1874, provide the procedure required for the approval and disapproval by the Governor of bills passed by the General Assembly. Section 15 requires a bill passed by the General Assembly "shall be presented to the Governor; if he approve it, he shall sign it; but if he shall not approve it, he shall return it, with his objections, to the house in which it originated" for reconsideration there, provides for the passage of the bill over his objections and further as follows: "If any bill shall not be returned by the Governor within five days, Sunday excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the secretary of state and give notice thereof by public proclamation within twenty days after such adjourn ment." "Section 17. The Governor shall have power to disapprove any item or items of any bill making appropriation of money, embracing distinct items; and the part or parts of the bill approved shall be the law, and the item or items of appropriations disapproved shall be void, unless prescribed for the passage of other bills over repassed according to the rules and limitations the executive veto." The said section 17 gives the Governor power to disapprove any item or items of any bill making appropriation of money, embracing distinct items, and declares that the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void unless repassed according to the rules and limitations prescribed for the passage of other bills over the executive veto; while by section 15 every bill presented to the Governor after the adjournment of the General Assembly becomes a law whether approved and signed by the Governor or not, "unless he shall file the same, with his objections, in the office of the sec-, public notification by some executive authority retary of state and give notice thereof by public proclamation within twenty days after such adjournment." There is a wide difference, in the opinion of the writer, between the provisions of the Constitution relative to the disapproval of a bill and the disapproval of a distinct item in an appropriation bill. In the first instance the Governor must take the affirmative action prescribed to prevent the bill becoming a law, while in the latter the part of the bill approved becomes the law and the item of appropriation disapproved is void unless repassed by the Legislature. There is no provision in said section 17 which authorizes the Governor to disapprove a distinct item in an appropriation bill, requiring him to file his objections with the bill in the office of the secretary of state and give notice thereof by public proclamation. The provision herein, merely because the Legislature was adjourned and there could be no repassing of the disapproved item over the Governor's veto, does not require that in order to make effectual the disapproval of any such item of the bill that the Governor shall follow the procedure laid down in said section for the veto of bills. In other words, the writer is of opinion that the Governor is authorized by said section 17 to disapprove any item or items of an appropriation bill embracing distinct items, thereby rendering them void, and that only that part of the bill approved becomes the law, excluding from it, necessarily, the items disapproved, and this without any further action taken by him whatever. [1] The majority of the court, however, is of opinion that the provisions of said section 15 of the Constitution requiring the filing of objections with the bill and the giving notice thereof by public proclamation are applicable and to be complied with in the disapproval of a distinct item of appropriation in an appropriation bill, and also that the Governor's action in writing "Disapproved and vetoed" across the face of the said item of appropriation, and signing the bill after the notation "Approved, except as to the above items disapproved and vetoed," and filing the same in the secretary of state's office, was a substantial compliance therewith. [2] The filing of the bill with said notation written across the face of the item disapproved was a sufficient statement of his objections thereto, and there is no requirement that the objections shall be written separately or upon a different instrument. [3] Now as to the giving of notice by public proclamation. The word "proclamation" is to be given its usual and ordinary meaning, it not having been apparently used otherwise. It is defined by the New Standard Dictionary (Funk & Wagnalls) as follows: "(1) The act of proclaiming or publishing. (2) That which is proclaimed or published, especially by authority; any announcement made in a public manner. (3) Law. (3) Law. (a) An official of the occurrence of an event important to the relation to a matter impending, as, a proclamapublic, or of command, caution, or warning in tion of peace. (b) An announcement made by a ministerial officer of a court of something to be done, as that court is about to open or adjourn, or a prisoner to be discharged. (4) A formal declaration; an avowal." See, also, Webster's Dictionary. In Lapeyre v. United States, 19 Wall. (U. S.) 191, 21 L. Ed. 606, a proclamation of the President relieving certain persons from penalties and removing all restrictions from commerce and trade in certain sections of the United States, executed or made on June 24, 1865, but not published in the newspapers until the 27th of June, nor published or promulgated anywhere or in any form before the 27th, "unless its being sealed with the seal of the United States in the Department of State was a publication or promulgation thereof" was held valid and effectual and published as of the day of its date. In Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915, the language of the act under consideration was: "Any public land, except such as is or may be reserved from sale by any law of Congress or proclamation of the President of the United States.' And the court held an order sent by the head of one of the executive departments to the Commissioner of the General Land Office directing it, effectual to reserve the land from sale as a proclamation of the President saying: "A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect. No particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained. If the President himself had signed the order in this case, and sent it to the registers and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we cannot doubt that the lands would bave been reserved by proclamation within the meaning of the statute. Such being the case, it follows necessarily from the decision in Wilcox V. Jackson that such an order sent out from the anropriate executive department in the regular course of business is the legal equivalent of the President's own order to the same effect. It was, therefore, as we think, such a proclamation by the President reserving the lands from sale as was contemplated by the act." This language was approved in Wood v. Beach, 156 U. S. 550, 15 Sup. Ct. 410, 39 L. Ed. 528. A verbal announcement by the circuit clerk was held the proclamation of the result of an election in Mackin v. State, 62 Md. 244, and the posting of a notice of meeting on the door of the council chamber and sending a copy thereof by mail to the mem-bers of the council by the mayor, a compliance with a statute authorizing the mayor to convene the council in special session by proclamation in Cushing v. Hartwig, 138 Mo.. App. 114, 120 S. W. 109. No particular form of proclamation is prescribed or indicated by the Constitution, but only that "notice thereof be given by public proclamation," and from the authorities it | Legislature is in session, he returns it with appears that a proclamation is public when made and sufficient if it has such publicity, or accomplishes the end to be attained. Here the bill was returned with his objections by the Governor to the office of the secretary of state where it was accessible and open to inspection of the public with his signature showing that the bill was approved, "except as to the items above disapproved and vetoed." The secretary of state, the officer required by law to publish the acts and resolutions of the General Assembly, was thus informed that the distinct items of appropriation across which had been written "disapproved and vetoed" were void and not to be included in the publication of the law approved. The public notice by the proper officer was therefore sufficient to accomplish the end to be attained, and the constitutional requirements were substantially complied with. It follows that the veto or disapproval was effectual and the items so disapproved void. The court therefore erred in sustaining the demurrer to the answer, and its judgment is reversed and the cause remanded, with instructions to overrule it. his objections to the house in which it orig- Then SMITH, J. (dissenting). This case has We think the purpose of section 17 was to been decided upon a question which was not confer upon the Governor the power to disraised or discussed in the briefs. It was ar- approve any particular item or items of an gued by counsel for appellant that the meth- appropriation bill, without rendering other od of vetoing, in toto, the bills referred to in parts thereof void, but this power, of course, section 15, article 6, of the Constitution is should be exercised in the manner provided entirely distinct and different from the meth- by the Constitution for approving or disapod of disapproving, or vetoing, an item or proving bills, and section 15 must be looked items of a bill making appropriations of mon- to for these directions. If this be true, then ey, referred to in section 17 of article 6. It it must necessarily follow that where the was contended that section 17 conferred the General Assembly by its adjournment has right of vetoing items of an appropriation prevented the return of the bill to the house bill, without defining how that right was to in which it originated, the Governor must be exercised, and that the provisions of sec-file the bill, with his objections, in the office tion 15 could not be looked to for directions of the secretary of state and give notice by on that subject, because that section related public proclamation, if he wishes to veto to the approval or disapproval of bills in toto; some item of it. and that, therefore, the provisions of section 15, requiring notice of the disapproval of a bill to be given by public proclamation did not apply, when the veto power had been exercised as to items of an appropriation bill. It was not contended that the provisions of section 15 had been complied with. It was not urged that any proclamation had issued. It was only insisted, but very earnestly insisted, that no proclamation was necessary, under the circumstances of this case. This view was accepted by the member of the court, who wrote the opinion for the majority, and it occurs to us that this was the real question in the case. Upon the question of the necessity for a proclamation our views accord with those of the majority of the court. Section 15 of article 6 provides that when the Governor approves a bill he shall sign it. This signature is made the evidence of executive ap Was a proclamation made? The majority has answered in the affirmative. But we submit this is ipse dixit. Cases cited in the majority opinion give no support to the view that the notation made by the Governor on the bill is a proclamation, and after a somewhat diligent search of the authorities we have failed to find any case supporting that holding. Cases cited in the majority opinion deal with the question of the promulgation of proclamations. We have no such question here. We insist that the Governor made no proclamation, and therefore none could have been promulgated. Section 15 deals with a subject of the highest importance, and its provisions are necessarily mandatory. The makers of the Constitution had some purpose in mind in requiring the Governor to give notice by public proclamation. In this manner the Governor is allowed pro tanto to set aside Where the bond of a local agent of an insurance company was conditioned that he should keep a true and correct account of all moneys received by him for the company and pay same over, should report business transacted, and in in compliance with the instructions of the genevery way faithfully perform his duties as agent eral agent, and should, at the end of the agency, deliver up to such general agent all moneys, policies, books, and property due from him or should do so, and reimburse such general agent in his possession, and that, if such local agent for all extra expense occasioned by any delinquency or failure to comply with such condidid not bind the local agent and his sureties tions, the obligation should be void, such bond to reimburse the company for the payment of losses occurring on policies issued by the local agent on prohibited risks. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 107-110; Dec. Dig. 83.] cording this right to the chief executive has, 3. INSURANCE 83 AGENTS AGENTS INDEMNITY been much debated in the making of Constitu- BOND-DEFAULT COVERED. tions and the right is one which has not always been granted. And it is universally held that it is a right which, when granted, must be exercised within the time, and in the manner, provided by the instrument granting it. It is not a right to be lightly exercised, but when exercised there should be no doubt of that fact. A record should be made, and that record is the one the Constitution provides to preserve the evidence of its exercise, which under our Constitution is a public proclamation. Here the Governor wrote across the item under consideration the words "Vetoed and disapproved," and a similar notation was made across the face of other items. If there was a proclamation this notation constitutes it, and it occurs to us that the statement of the proposition carries its own refutation. The Governor does not sign a bill or write anything on it for the purpose of disapproving it. The Constitution provides that if he approve a bill he shall sign it, but if he disapproves the bill, or any portion of it, he does not evidence The appellant, an insurance company, that disapproval by marginal notations. He brought suit against J. N. Jaggers, as prinmust make the record which the Constitu- cipal, and the sureties on his bond given to tion requires; i. e., a proclamation. Arkan-secure the faithful performance of his duties sas State Fair Ass'n v. Hodges, 178 S. W. 939. as local fire insurance agent to T. A. ManBelieving that this notation on the bill, ning, as general agent for the Security Fire for the making of which the Constitution Insurance Company. contains no authority, is insufficient to meet the requirement that there be a public proclamation, and, believing that this notation would never be recognized as a proclamation, in the absence of that label placed on it by the majority, we dissent from that holding. HART, J., concurs. Appeal from Circuit Court, Lawrence County; Dene H. Coleman, Judge. Suit by the Security Insurance Company against J. N. Jaggers and others. Judgment for defendants on demurrer, and plaintiff appeals. Affirmed. The complaint alleges that the insurance company, through its general agent, T. a. Manning, appointed J. N. Jaggers its local fire insurance agent, at the town of Walnut Ridge, with authority to sign, issue, and deliver policies of insurance, on the property in said town, in accordance with the rules and regulations of said company, and that said defendant agreed, in accepting said agency, to faithfully perform his duty as said agent, in compliance with the instructions of the general agent, through his prop(Supreme Court of Arkansas. Oct. 25, 1915.) er representatives. It then states that Jag1. PRINCIPAL AND AGENT 143-UNDISCLOS-gers and his sureties executed the bond, conED AGENCY-SURETY BOND-WHO MAY EN- ditioned for the faithful performance of his FORCE-PRINCIPAL OF OBLIGEE. SECURITY INS. CO. v. JAGGERS et al. (No. 193.) Where a bond securing the performance of his duties by a local insurance agent was executed by him to the general agent of the company for the latter's benefit, though it was not disclosed therein as the principal obligor, such company, nevertheless, could bring suit on such bond for the local agent's default. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 502-512; Dec. Dig. 143.] 2. PLEADING 216-DEMURRER-CONSIDERATION OF EXHIBIT-STATUTE. Under Kirby's Dig. § 6128, providing in part that, if the action is founded on a bond, the original or a copy thereof must be filed as part of the pleading if the party can produce the instrument, in an insurance company's action against its local agent and the sureties on his bond, the bond, filed as an exhibit to the complaint, could be considered on demurrer to the pleadings. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 535-539; Dec. Dig. 216.] duties, by Jaggers the agent, and that: "They would pay to said general agent all moneys due from said J. N. Jaggers, and would reimburse said general agent for all expenses occasioned by any delinquency or failure on the part of said J. N. Jaggers to comply with the conditions of said bond, and attached a copy of same to the complaint, and made it a part thereof as Exhibit A." It states further that J. N. Jaggers delivered two policies of insurance to certain persons, the owners of property that were prohibited risks, insuring one in the sum of $1,500, and the other for $400; that the agent was without authority to issue such policies, was notified to cancel and have them returned as he was authorized to do under the provisions of the policies, and failed to do so; that a loss occurred under both policies for which the insurance company became liable, and which it adjusted, agreeing to pay to Fletcher Bros. $1,326.87 under one policy, and to W. A. Bynum $400, under the other policy; that it incurred the expense of sending the adjuster to Walnut Ridge for the adjustment of the loss of $50, and— "plaintiff states that the defendants, J. N. Jaggers, E. H. Tharp, and J. C. Hall, are liable to it to the extent of $300 on the said bond heretofore mentioned, because said loss was sustained by reason of the failure of said Jaggers to faithfully perform his duties as agent in compliance with the instructions of the general agent, in that said Jaggers did not faithfully perform his duties as such agent, and did not comply with the instructions of the general agent in writing said policies, which were on the prohibited list, and also in failing to cancel said policies after instructions to do so from said general agent." bond was executed, it nevertheless had the right to bring suit thereon. Mass. Bonding Co. v. Higgins, 174 S. W. 1150; Miss. Valley Const. Co. v. Abeles, 87 Ark. 374, 112 S. W. 894; Bryant Lumber Co. v. Crist, 87 Ark. 434, 112 S. W. 965; Frazier v. Poindexter, 78 Ark. 241, 95 S. W. 464, 115 Am. St. Rep. 33, 8 Ann. Cas. 552; Mechem on Agency, §§ 768-770; Shields v. Coyne, 148 Iowa, 313, 127 N. W. 63, 29 L. R. A. (N. S.) 472, Ann. Cas. 1912C, 905; note, 31 Cyc. 1598. [2] The action is founded on the bond of appellees, which was filed as an exhibit to the complaint, and may be considered upon demurrer to the pleadings. Section 6128, Kirby's Digest; Sorrells v. McHenry, 38 Ark. 127; Euper v. State, 85 Ark. 223, 107 S. W. 179. The bond is conditioned as follows: "The condition of this obligation is such that, whereas the above-named J. N. Jaggers, having [3] Under the terms and conditions of the been appointed by said general agent as his bond, Jaggers, as principal, was bound to agent for the town of Walnut Ridge, county of keep a true and correct account of all monLawrence, state of Arkansas, and as such agent eys received by him for the insurance comwill receive divers sums of money, policies, chattels, and other effects, the property of said pany and to pay same over, to make a report T. A. Manning, general agent, and J. N. Jag- of the business transacted, and in every way gers, being bound to keep true and correct ac- faithfully perform the duties as agent in count of the same, pay over such money correctly, and make regular reports of the business compliance with the instructions of the gentransacted by him to the said T. A. Manning, eral agent, through his proper representageneral agent, and in every way faithfully per- tives, and at the end of the agency to deliver form the duties as agent in compliance with the up to the said general agent, or his repreinstructions of the general agent through his proper representatives, and at the end of the sentative, all moneys, policies, books, and agency by any cause whatever shall deliver up property due from him or in his possession, to the said general agent or his authorized and it was further provided that, if he should representatives all moneys, policies, books, and do so, and reimburse said general agent for property due from or in his possession: "Now, therefore, if the said J. N. Jaggers all extra expense occasioned by any delinshall promptly pay to the said general agent the quency or failure to comply with the foremoneys received from time to time, and shall going conditions, the obligation should be well and truly perform all and singular the du- void. It does not appear to contemplate that ties as agent of said general agent, in accordance with the instructions of said general agent, the agent should be bound to the payment of as given or made known by him or his proper losses occurring on policies issued on prorepresentatives, for and during which time he hibited risks by him, and does not, in the opinofficiates as agent, and shall deliver all property ion of the court, bind him to any such paywhich he may receive and hold as agent to his successors in office, or to such person as the general agent or his authorized representative The complaint therefore did not state a may direct, and reimburse said general agent cause of action, and the court committed no for all extra expense occasioned by any delinquency or failure to comply with the foregoing conditions, then this obligation shall be null and void; otherwise to remain in full force and virtue." ment. error in sustaining the demurrer. CONWAY v. MILLER COUNTY HIGHWAY The appellees interposed a demurrer to the complaint, which was sustained, and the complaint amended, and the demurrer again renewed. It was again sustained, and appel-(Supreme Court of Arkansas. Nov. 1, 1915.) lant standing upon his complaint, it was dismissed, from which judgment it prosecutes this appeal. Cockrill & Armistead, of Little Rock, and H. L. Ponder, of Walnut Ridge, for appellant. J. N. Beakley, W. E. Beloate, and O. C. Blackford, all of Walnut Ridge, for appellees. KIRBY, J. (after stating the facts as above). [1] The allegations of the complaint show that the bond was executed by the local agent, Jaggers, to the general agent of appellant insurance company, for its benefit, and, although it was not disclosed therein as the principal or person for whose benefit the 1. STATUTES 205-CONSTRUCTION. A statute should be considered as a whole in construing it. Cent. Dig. § 282; Dec. Dig. 205.] 90-UNITY OF IMPROVEMENT Acts 1915, p. 617, is entitled "An act to lay off and establish a part of Miller county into a public highway and bridge district for city of Texarkana to various localities in the the construction of public highways from the territory hereinafter described, and for the construction of a public bridge in connection with such highways over and across the Red river, * * and to organize and incorporate a highway and bridge district and provide for levying assessments and collecting the same, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |