State of Arkansas vs. Little Rock, Mississippi River and Texas R'y Co.

enforce itself. It defines certain powers; but to make them operative, legislation is necessary."

The authorities upon this point are numerous and clear, and we do not understand counsel as contending that, in order to give effect to this constitutional provision, legislation is not necessary; nor that it is not also necessary, before the passage of an act which provides for loaning the credit of the State for railroad purposes, that the qualified voters of a State, should assent to the passage of a law by a majority vote. But they contend that if a majority so voting, vote for railroad, the law becomes operative and is in force. But if this be true, and the law is to take effect as soon as the vote is counted and the fact ascertained, it was certainly not in force before that. time; nor when the polls were opened, the votes taken, and the count made, because all these acts must precede the ascertainment of the result, which calls the act into existence; and as a consequence, at the time when the election was held and the vote taken, there was no law in force; no legal obligation upon any one to make a correct and fair return of the result, which is sometimes found to be so important in the due administration of the law. So that this construction is unavailing, or, if well taken, we are unable to conceive how a legislative enactment, which of necessity must be complete, can be made to take effect for one purpose and not for another.

The whole act must be perfect in all its parts, before it leaves the legislative department. And unless by an express declaration in the act itself as to the time when it is to take effect, under the express provisions of the Constitution, it does not go into effect, and is inoperative as a law, until ninety days after the adjournment of the session at which the law was passed.

The remarks of Mr. Williams, special judge, in the case of Whitehead v. Wells, that a law did not take effect until ninety

State of Arkansas vs. Little Rock, Mississippi River and Texas R'y Co.

days after its passage, was inadvertently made and escaped the attention of the court when the opinion was delivered, and must be considered as qualified to conform to this opinion.

Mr. Cooly, Const. Lim., page 117, remarks that it is not always essential that, to be a complete statute, it must take effect as a law at the time it leaves the hands of the legislative department; but its taking effect may depend upon a subsequent event.

It is true that the time when the statute is to take effect, may be made to depend upon subsequent events; but the necessary events in this case, to give force to the statute, must necessarily be precedent to the time of holding the election, not subsequent to it. At the time, therefore, that the law took effect, no vote had been taken at the ballot box, and, consequently, no power to legislate upon the subject of loaning the credit of the State.

In addition to this ground of objection to the validity of the act granting State aid, it is urged as an additional ground that the act of 21st July, 1868, was not read three times on three several days, in the two houses of the Legislature, as required by the provisions of the Constitution, and that for this reason, also, the bonds are void.

Art. V, section 21, Constitution, declares that every bill and joint resolution shall be read three times, on different days, in each house, before the final passage thereof, unless two-thirds of the house, where the same is pending, shall dispense with the rules.

It appears from House Journal, 1868, p. 480, July 20, on motion of Mr. Benjamin, substitute for Senate bill No. 49, an "Act to aid in the construction of railroads," was read first time.

Same day, on motion of Mr. Johnson, the rules were suspended and the bill read second time.

State of Arkansas vs. Little Rock, Mississippi River and Texas R'y Co.

On the same day, after several amendments, on motion of Mr. Johnson, the bill was read the third time and put upon its final passage, and passed; pp. 481-2.

No suspension of the rules for the third reading appears.

On the same day the bill was reported to the senate, "house amendment was concurred in," the bill read a third time and passed. Senate Journal, p. 246. No suspension of the rules shown.

Thus it appears that the substitute bill was not read on three several days, in either house, nor does it appear that the rules were suspended by a two-thirds vote. The act was, therefore, passed, it would seem, in violation of the Constitution.

In the cases of The Town of South Ottawa v. Perkins, and The Board of Supervisors of Kendall County v. Post, decided by the Supreme Court of the United States, reported in the Central Law Journal, vol. 4, p. 442, the question of the validity of an act of the Legislature of the State of Illinois was considered at great length, and Mr. Justice Bradley, who delivered the opinion of the majority of the court, said: "As early as 1853, it was decided in Spangler v. Jacoby, 14 Ill., 299, that it was competent to show from the journals of either branch of the Legislature that a particular act was not passed in the mode prescribed by the Constitution, and thus defeat its operation altogether. The Constitution requires each house to keep a journal, and declares that certain facts, made essential to the passage of a law, shall be stated therein. If those facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the house, and is presumed to contain a full and complete history of its proceedings. If a certain act received the constitutional assent of the body, it will so appear on the face of the journal. And when a contest arises as to whether the act passed, the journal may be appealed to, to

State of Arkansas vs. Little Rock, Mississippi River and Texas R'y Co.

settle it. It is the evidence of the action of the house, and by it the act must stand or fall."

The bill was enrolled, signed by the speaker of the house and president of the senate, and approved by the governor. It was passed in 1857, had been on the statute book thirteen years, and under it, the inhabitants of South Ottawa voted to subscribe stock to the railroad company, and authorized the issuance of bonds to pay its subscription. The journals did not show that the act had passed.

It was held that the journals might be used as evidence to prove this fact, and the bonds were held to be void, even in the hands of innocent purchasers.

In the case before us, it affirmatively appears that the bill passed three readings, in the house, in one day, and on the same day. was passed in the senate, and on the next day received the approval of the governor.

This is a strong case, and leaves no margin for presumption in favor of the regularity of the proceedings. It is much stronger than that of English v. Oliver, reported in 28 Ark. Rep., p. 320, in which it was held that presumption of the regularity of the proceedings might be indulged where nothing to the contrary appeared. Whilst in this case, no presumption in favor of the regularity of the proceedings can be indulged, as the question is one of no ordinary importance, and as we may well rely upon the other ground of objection, with regard to which the authorities are clear, we will decline to express any positive opinion with regard to the invalidity of the act of the legislature, because not read the number of times, on different days, as required by the Constitution.

It is next argued by counsel for plaintiff, that the railroad company, having received the bonds and disposed of them, is estopped from denying their validity.

State of Arkansas vs. Little Rock, Mississippi River and Texas R'y Co.

The numerous authorities cited by counsel in support of this position, would sustain them under ordinary issues between parties contracting, but not where the contract is void for want of power to contract. The party is never estopped from denying the existence of a law, but the effect of estoppel is to deny the existence of that, which, if undenied, has force and effect. That which is void in law is, in law, nothing, whether denied or admitted. If there is no contract, there can be no estoppel.

In the case of The Town of South Ottawa v. Perkins, above cited, Mr. Justice Bradley, when considering this question, said: "There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document, purporting to be an act of the legislature, could thus be a law in one case and for one party, and not a law in another case and for another party; a law to-day and not a law to-morrow; a law in one place, and not a law in another in the same State. And whether it be a law or not a law, is a judicial question to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case."

Nor can the fact that, under a misapprehension of the character and invalidity of the act of July 21st, 1868, the State subsequently passed a law in amendment of it, affect the question. This question came before the Supreme Court of the United States, and was disposed of in the opinion above referred to. Mr. Justice Bradley says: Thus far, we have not adverted to the argument attempted to be drawn by the defendants from the fact that the act in question was referred to in two subsequent acts of the legislature. The legislature, in 1869, could not give validity to a void act passed in 1857. The most that can be said is, that