the House in open session, and all other business was suspended, we think we are bound, in the absence of a recital of the journal to the contrary, to presume that this condition precedent had been observed.

"It can hardly be presumed that the members of that house who voted against this bill were ignorant of the requirements of the Constitution and neglected to avail themselves of this means of defeating a bill to which they were opposed, or, on the other hand, that its friends would knowingly risk its rejection by neglecting such a simple precaution. The presumption in favor of the correctness of official action attends the action of the representatives of the people in the two houses of the general assembly.

"This was the conclusion reached in State ex rel. Atty. Gen. v. Mead, 71 Mo. 272, and we see no reason for adding to, or departing from, what was so well said in that case, by the learned judge who prepared the opinion. Schuyler County v. People, 25 Ill. 181; People v. Dunn, 80 Cal. 211, 13 Am. St. Rep. 118, 22 Pac. 140. We accordingly hold that it must be presumed that the Constitution was obeyed, and the amendments printed before final action thereon."

-failure of records to show

In that case the house had expressly ordered the printing done, but in that and in this the printing was ordered by the constitutional provision. The silence of the record printing-effect. in that case with respect to the fact of printing is not to be differentiated from the same silence in this case because of the order to print found in that case.

(2) It is argued that the facts in the stipulation affirmatively prove the amendments were not printed. No case is cited which holds that a law may be invalidated by evidence other than entries in the regular journals of the House. The effort here is to show by oral testimony that there is no record proof that the amendments were printed. It is

-parol proof of absence of

record of print

ing.

not contended the journal makes any affirmative showing. It is silent except in so far as an inference may be based upon the facts of the consideration of the amendments and upon a further silence

the absence of protest under § 37, art. 4. In the majority opinion in State ex rel. Schmoll v. Drabelle, 261 Mo. 515, 170 S. W. 465, it was ruled that a law may be held invalid when the when the journal shows affirmatively that an essential constitutional requirement has not been met. That rule does not authorize resort to oral evidence to contradict the journal, or to prove that a step required, but not required to be entered in the journal, was not taken. The rule contended for in the dissenting opinion in that case is that courts may not go back of the enrolled bill. It is apparent this rule would not let in evidence like that offered here. Neither rule supported in that case avails in this. The difference of opinion in that case is indicative of that in the courts of the country. A rule like that contended for would render legislation insecure and remit it to the courts to try its validity on questions of constitutional procedure on the testimony of witnesses. The doctrine is not supported by either reason or authority.

III. It is argued that because the journals do not in every instance set out the full title of Senate Bill No. 2 in the entries, which on their faces show that the bill was read as required, invalidates the act. It is not and could not be claimed that the entries do not contain ample matter to identify Senate Bill No. 2 as the bill to which journal entries refer. The Constitution required the bill to be read. The journal entries clearly identify it in each instance, and show it was read. It is not required that each journal entry contain the full title. In such circumstances the objection made is not sound. Nor is it required that a bill must have at all stages of its progress the same title. title. It is not asserted the title as finally adopted is insufficient. "There is nothing to show such a

IV. It is urged that reading a bill on Sunday is equivalent to failing to read it at all, and, as a consequence, Senate Bill No. 2 was not passed in a constitutional manner.

The question is whether an act of legislation performed by the general assembly on Sunday is a nullity. It is not contended there is anything in the Constitution which expressly forbids legislative action on Sunday, or even that any specific statutory provision of that kind exists. Counsel say they have been unable to find a decision on the point. It is argued that Sunday is dies non, so far as courts are concerned; that work and labor and many other things are prohibited on that day; and that it must be inferred that the framers of the Constitution had in mind secular days when they provided that all bills should be read on three separate days in each house. The question is not whether the general assembly ought to perform any of its duties on Sunday, or whether it ought to be prohibited from doing so. The question is whether it is prohibited from doing so, whether all legislative action on that day is a nullity. That such action is offensive to sentiment in the state may be conceded. Is it forbidden? The common law, with certain qualifications, was put in force in Missouri in 1819. Rev. Stat. 1919, § 7048; Lindell v. McNair, 4 Mo. 380. Under that law judicial acts were not permitted on Sunday, but "as to all other acts it made no distinction between Sunday and other days of the week." Said v. Stromberg, 55 Mo. App. loc. cit. 441, citing 2 Parsons, Contr. 7th ed. 757, notes n. and c. c. This is generally held. Swann v. Broome, 3 Burr. loc. cit. 1598, 97 Eng. Reprint, 1001; Story v. Elliot, 8 Cow. 27, 18 Am. Dec. 423; Mer

and

ritt v. Earle, 31 Barb. loc. cit. 41; Drury v. Defontaine, 1 Taunt. 131, 127 Eng. Reprint, 781; Rex v. Brotherton, 1 Strange, 702, 93 Eng. Reprint, 794; Heisen v. Smith, 138 Cal. loc. cit. 218, 94 Am. St. Rep. 39, 71 Pac. 180 (citing Bouvier's Law Dict.-"Sunday"); Southern R. Co. v. Wallis, 133 Ga. loc. cit. 555, 30 L.R.A. (N.S.) 401, 66 S. E. 370, 18 Ann. Cas. 67; Boynton v. Page, 13 Wend. loc. cit. 429; 37 Cyc. p. 545; 25 R. C. L. pp. 1413, 1414. The Constitution contains no prohibition which is invoked on this question. The statutes respecting Sunday are valid (State v. Ambs, 20 Mo. 214), but no one of them has any special reference to the prohibition of legislative action on Sunday, even if it be assumed one legislature might restrict another with respect to its activities as a legislative body by an act imposing penalties upon its members. The general assembly is a separate magistracy. Among the almost innumerable decisions upon the question what acts fall within the prohibitions of statutes more or less like ours (Rev. Stat. 1919, §§ 3596 et seq.), there is none in which it is attempted to apply such provisions to punish a member of the legislature for acting in his official capacity on Sunday, or to apply it to render void an act of legislation because some step in its passage was taken on Sunday. There is much conflict in the decisions of the country concerning the limits of the scope of such statutes, though there is general agreement as to their validity and as to their general effect. In such circumstances, if the statute is relied upon, it ought to be a plain case before this court should say to a co-ordinate magistracy that its work was done out of time. Lord Mansfield remarks in one case that he had sat in Parliament on Sunday. Mr. Cushing in his "Law & Practice of Legislative Assemblies," §§ 356, 357, p. 145, says:

"A legislative assembly, having once met, either with or without a quorum, on the day appointed for its meeting, continues to meet after

wards regularly, and as a matter of course, every legislative day; that is to say, every day, except Sundays and such other days (as, for example, in England, Christmas and Good Friday) as, by the law and usage of each particular state, are accounted as holidays. But though these days are not legislative, on which an assembly meets as of course, or on which it would meet unless otherwise ordered, they may nevertheless be made legislative days by the assembly itself. Thus, if the assembly sits over from the day preceding, or appoints them beforehand for a meeting, they then become legislative days. In the eastern and probably in some of the other states, Sunday is the only day which is not an ordinary legislative day, and on which a legislative assembly does not meet, as a matter of

course.

"Sundays, and the other days above mentioned, being legislative days or not according to the determination of the assembly, they are always reckoned as a part, or so many days, of the session; thus, for example, the members draw their daily pay for these as much as for any other days; and when it is provided by Constitution that neither house shall adjourn for more than a given number of days, without the consent of the other, that the executive shall return a bill within a certain number of days,-these days are included in the computation; but where the rules of an assembly require that certain motions, as, for example, the motion for reconsideration, shall be made within a fixed number of days, Sundays and the other days above mentioned are included or not in the computation, according as the assembly sits or not on those days."

In State ex rel. McMurtry v. Thompson, 37 Mo. 176, this court quoted with approval a part of § 357. Cushing's citations show both houses of Congress have held sessions on Sunday, and reference to these citations, so far as available, discloses that the objections made at

the time were not to the legality of the session, but to the morality of the act of holding it.

In one of these citations (6 Cong. Globe, p. 371) it appears that all seemed to concede that the house lawfully could sit on Sunday, and that the question of the necessity of such a sitting could be determined by that body. In another citation, at page 245 of the 7 Cong. Globe, it is shown that the Senate adjourned at 4 A. M. Sunday until 10 A. M of that day, and met at that time. The heading is "Sunday, March 3, 1839." At page 248 a meeting of the House is shown under date of "Sunday, March 3, 1839."

Even if in such a state of the decisions, and in view of the practice and holding cited, it ordinarily could be held that legislative action was work within the meaning of the section cited, and that the section applied to the members of the legislature in the performance of their duties as such, and that the effect of the section would ordinarily be to nullify action on Sunday, the question whether the work was one of necessity would remain. The judgment of the general assembly on this feature ought to have weight. The resolution adopted indicates its belief that the act in question was necessary to check a wave of crime and lawlessness. No general definition of "necessity" can be given.

"The question must be determined according to the particular circumstances of each case, having regard also to the changing conditions of civilization. In general, it may be stated that although by the word 'necessity', is not meant a physical and absolute necessity, it does mean something more than is merely needful and desirable, and generally involves considerations of moral fitness and propriety. There must be at least a moral emergency which will not reasonably admit of delay, but is so pressing in its nature as to rescue the act done from the imputation of a wilful desecration of a day made sacred for certain purposes, in morals as well as in law. And, gen

erally speaking, it ought to be an unforeseen necessity, or, if foreseen, such as could not reasonably have been provided against." 25 R. C. L. pp. 1421, 1422.

The fact that the emergency clause was not passed is no answer, since that seems to have been due to the small attendance at the extra session more than anything else. That the action on Sunday advanced the act but one day is true, but the general assembly deemed that of consequence.

The contention of counsel which has just been considered rests upon the assumption of the soundness of the majority opinion in State ex rel. Schmoll v. Drabelle, supra. If the dissenting opinion in that case is correct, the present contention has nothing to support it, since, according to that dissent, the journal cannot be examined at all. The rejection of the principle contended for in the dissent mentioned is necessary before the question concerning the legislative right, or power, to transact business on Sunday, can get into this case. What has been said upon that question necessarily rests upon the assumption, for argument's sake, that the majority opinion in the Drabelle Case is right. The intent is not to reopen that controversy, though the briefs discuss it, nor to decide again that question, but to show that whatever view is taken of it the result must be the same. The dissent in the instant case of necessity involves a rejection of the principle of the dissent in the Drabelle Case, as well as a rejection of the reasons advanced to show that, to show that, though it be assumed that the majority were right in the Drabelle Case, nevertheless the law reaches the same result in this case. We hold that the reading of the bill on Sunday, whatever view may be taken of the propriety or morals of the action, cannot

-effect of read

day.

ing bill on Sun- be held a nullity under our law as it now stands. It results from this and what is said in preceding para31 A.L.R.-43.

graphs that the petitioner must be remanded.

Graves, J., dissenting:

I am constrained to dissent in this case. I concur, however, in all of the opinion except paragraph 4 and the result reached. My dissent must, as a matter of course, center upon the questions ruled in this paragraph of the opinion. Of these matters in order.

I. In the modified opinion now before me, in speaking of the majority opinion in State ex rel. Schmoll v. Drabelle, 261 Mo. 515, 170 S. W. 465, it is said: "The intent is not to reopen that controversy, though the briefs discuss it, nor to decide again that question, but to show that whatever view is taken of it the result must be the same."

I did not agree to that opinion, and for reasons stated in my dissenting opinion in that case, 261 Mo. loc. cit. 524, 170 S. W. 467, and in State ex rel. Frazer v. Seibel, 262 Mo. loc. cit. 228, 171 S. W. 69. The case was reviewed in 15 Columbia L. Rev. 285. In this review (speaking of the majority opinion in Drabelle's Case) it is said: "The duty of the courts to pass on the constitutionality of legislative acts has been interpreted in many jurisdictions to include the necessity of looking behind enrolled bills to see that the legislators have, in their procedure, complied with constitutional requirements. Opinion of Justices (1858) 35 N. H. 579; Rode v. Phelps (1890) 80 Mich. 598, 45 N. W. 493; State ex rel. Pitts v. Nashville Baseball Club (1912) 127 Tenn. 292, 154 S. W. 1151, Ann. Cas. 1914B, 1243. But the opposite view has been taken in a very strong line of decisions, which refuse to subject a law, publicly proclaimed and acted upon, to the danger of being undermined by evidence from a carelessly compiled journal. Pacific R. Co. v. Governor (1856) 23 Mo. 353, 66 Am. Dec. 673; Ex parte Wren (1886) 63 Miss. 512, 56 Am. Rep. 825; State ex rel. Colbert v. Wheeler (1909) 172 Ind. 578, 89 N. E. 1, 19 Ann. Cas. 834.

The better-reasoned cases recognize the judicial duty to see that constitutional requirements are observed, but accept the solemn assurance of the governor and presiding officers of the legislature as unimpeachable evidence of the proceedings of the co-ordinate branches of government. Marshall Field & Co. v. Clark (1892) 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495; Lafferty v. Huffman (1896) 99 Ky. 80, 32 L.R.A. 203, 35 S. W. 123; Atlantic Coast Line R. Co. v. State (1910) 135 Ga. 545, 32 L.R.A. (N.S.) 20, 69 S. E. 725. Even the decisions upon which the decision in the pricipal case is based recognize a strong presumption in favor of the regularity of the enrolled bill, which would not be sufficiently rebutted by doubtful evidence in the journal. State ex rel. Douglas County v. Frank (1901) 61 Neb. 679, 85 N. W. 956; Missouri, K. & T. R. Co. v. Simons (1907) 75 Kan. 130, 88 Pac. 551; Goff v. Rickerson (1911) 61 Fla. 29, 54 So. 264. The principal case, in allowing conflicting evidence from the journals to impeach an enrolled bill, seems to give very little weight to this presumption."

In the present case, when the majority of this court says "the intent is not to reopen that controversy nor to decide again that question," it is an approval of the majority opinion in Drabelle's Case. A refusal to reopen a question previously decided by this court is in legal effect an approval of the previous ruling. In this instance, the approval of the majority opinion in Drabelle's Case is by six of the seven members. Even the support which I had in the dissent in the Drabelle and Seibel Cases has left me. I did not then, nor do I now, agree to the views of the majority opinion in Drabelle's Case, but it is the law of this state until overruled. In the present case the majority of the court declines to reopen the question there decided. This opinion again reiterates the rule in Drabelle's Case. If that rule be the law, the present opinion does vio

lence to the rule. There we ruled that an enrolled bill could be impeached by the entries upon the journal of the house, and that the matter was a question for the courts. In the instant case one reading of the bill was upon Sunday, and the legislative record so shows. Under the Drabelle Case the enrolled bill can be impeached by such evidence, and it is a matter for court determination, notwithstanding the provisions of §§ 37 and 38 of article 4 of the Constitution.

It is made clear by Drabelle's Case that if there were but two legal or lawful readings of the bill, and such was shown by the record, then the law never was enacted in · the manner pointed out by the Constitution, and therefore invalid. In other words, if a reading upon Sunday was no reading (the reading upon Sunday being shown by the legislative records), then the law is invalid. This, because six members of the present court have given the majority views in Drabelle's Case the stamp of their approval.

II. The majority in the present case, adhering, as is done by the opinion, to the majority views in Drabelle's Case, supra, reach the result by ruling that, although the legislative record shows one reading upon Sunday, such day is a legislative day within the meaning of § 26 of article 4 of the Constitution, which says, "And every bill shall be read on three different days in each house." The force of their argument is that the Constitution does not say to the legislature, "You shall not meet upon Sunday," and therefore Sunday is a legislative day, just as are the six secular days of the week. Up to the enactment of this measure, the Constitution has never been so construed by our lawmak

There have been sessions upon Sunday, which we know as a matter of history, but no legislative record of such Sunday service, so far as we can find. What was done on Sunday appears upon Saturday's record, and that kind of a record cannot be impeached. If Sunday is a