concurrence">Mb. Chief Justice Neil

delivered a concurring opinion as follows: The first question in these cases is whether there was a quorum in the house on April 3, 1913.

Our constitution (article 2, sec. 11) provides: “The senate and house of representatives, when assembled, shall each choose a Speaker and its cither officers; be judges of the qualifications and election of its members, and sit upon its own adjournments from day to day. Not less than two-thirds of all the members to which each house shall be entitled . . . shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized, by law, to compel the attendance of absent members.”

*209In my judgment, this can mean nothing else than that two-thirds of the number to which each house is. entitled are necessary to make a quorum-; and that a less number can transact no business except to adjourn from day to day until a quorum shall assemble; there being no law in existence authorizing the body assembled, being less than a quorum, to compel the-attendance of absent members.

That two-thirds are necessary to make a quorum is not only clear from the language quoted, but this construction is made stronger even by the fact that both of the prior constitutions, those of 1796 (article 1, sec, 8) and 1834 (article 2, sec. 11), phrased the matter thus: “Two-thirds of each house shall constitute a quorum to do business.” It is perceived the present constitution changed this language into “not less.than two-thirds,” etc. It is also noted that the language “of each house” is changed into “of all the members to which each house shall be entitled.” It is apparent,, by comparing the three instruments, that the two prior constitutions were before the convention of 1870, and were examined at every step; and their language was,, in many instances, adopted. The change from that language to the language used in the present constitution shows how solicitous the convention was to place-beyond controversy the requirement that two-thirds should be necessary to make a quorum.

It is insisted that this requirement was not mandatory, but merely directory, in view of the fact that it *210is provided in section 18 of the same article that in order to become a law every hill must, upon its third reading, receive, in each house, “the assent of a majority of all the members to which that house shall be entitled under this constitution”; and that a similar provision occurs in article 3, sec. 18, respecting the passage of a bill over the governor’s veto. Article 2, sec. 5, provides that the membership of the house of representatives shall never exceed nighty-nine, and this is the number which now composes that house. Sixty-six members are required to constitute a quorum, but under article 2, sec. 18, and article 3, sec. 18, a majority of this quorum cannot pass any bill, and make it a law; but, in order to effect this result, a majority of all of the members to which each house is entitled must vote for it. It is urged that the real, effective body, therefore, is the majority of each house voting for a bill. In view of the specific terms in whiclf the quorum was provided for, it is a singular thing, it is true, that a majority of the quorum was not permitted to control, and that control was vested in the majority of the whole membership. I cannot say, however, that this would evince a purpose to make the provisions concerning the quorum merely directory. Rather, the two provisions indicate a sedulous purpose on the part of the convention, and of the people ratifying the constitution, that all legislative business should receive the careful attention of at least two-thirds of the membership of each house. To secure *211that attention, it was required that two-thirds should at all times be present, and that of these, in case only that many should be present, a number equal to a majority of the whole membership of each house should vote for a bill before its passage could be effected. I do not think it can be gainsaid that the two requirements acting together would be more likely to secure an efficient execution of the business of the legislature, than'if either were omitted. It is true that those in excess of the majority of the whole membership can have no effect, by their votes, as against that majority; but, pending the consideration of all legislation, it is furthermore true that, by the presence of the large number required to make a quorum, the constituents - of all of the members will have the benefit of the consideration which the large quorum could give, a consideration necessarily superior to that which could be given by a smaller number, becauseffhe larger number represents a wider experience, and a wider range of views. This is all I deem it necessary to say at this time on the subject of directory and mandatory provisions in the constitution. Further along in this opinion I shall state my views on the general subject a little more at length.

Was there a quorum in the house on April 3d?

The journal of the House on that day, at the time Bill 759 purports to have been passed, shows the following :

*212“Mr. Cox made the following motion: Mr. Speaker,. I move that House Bill No. 759 he passed, notwithstanding the objections of the executive.

“On request of Mr. Thompson, House Bill No. 759 was read by the clerk.

“On request of Mr. Todd, the message of the governor vetoing House Bill No. 759 was read by the clerk.

“Thereupon the roll was called upon the adoption of the motion of Mr. Cox, with the following result:

“Bepresentatives voting aye were: Messrs. Aeree,. Babb, Barnett, Bejach, Boyer, Bryant, Byron, Card-well, Chamlee, Cochran, Collier of Humphreys, Collier of Summer, Cox, Davis, Drane, Dunn, Emmons, Gilbert, Greene, Hill, Hunt, Johnson of Madison, Johnson oí Shelby, Kirkpatrick, Larsen, Lefever, Link, Love, Malone, Matthews, Mayes, McCormick, McDade, McFarland, Miller of Marshall, Moore, Morris, Murphy, Myers, Nichols, O’Brien, Quenichet, Eoyston, Schmit-tou, Shaw, Stone of Cheatham, Taylor of Madison, Todd, Weldon, Wilson, Winchester, and Mr, Speaker Stanton — 52.

“Bepresentatives voting no were: Messrs. Dorsey, Fuller, Miller of Lauderdale, and Thompson — 4.

“When the name of each of the following representatives was called, Mr. Speaker Stanton answered for each, ‘Not voting’: Messrs. Abernathy, Albright, Bullard, Campbell, Childs, Creswell, Denton, Duncan, *213Emert, Fisher Fleeman, Fox, Gallagher, Harpole, Hughes, Koffman, Mitchell, Mullens, Park, Parkes, Pierce, Ranlston, Rickman, Riggins, Roberts, Robinson, Scott, Smith, Stephenson, Stone of Lincoln, :Spears, Testerman, "Walker, West, Williamson — 35.

“Representatives answering, ‘Present but not voting,’ were: Messrs. McWherter and Taylor of Jeffer.son — 2.

“When the name of Mr. Dorsey was called he voted, •‘No.’ and offered an explanation, which was sent to the desk, and on request of Mr. Cox the clerk proceeded to read the explanation.

‘ ‘ The reading of the explanation was interrupted by Mr. Cox, who made the point of order that the question of a quorum could not be determined except by a roll call.

“Mr. Speaker Stanton ruled the point of order well taken, and declared the explanation out of order.

“Mr. McWherter answered, ‘Present but not voting,’ and offered an explanation.

“Mr. Speaker Stanton ruled the. explanation out of ■order.

“Mr. Thompson offered the following explanation, which was declared in order by Mr. Speaker Stanton:

“Mr. Speaker, I vote no on the motion to pass House Bill No. 759 over the veto of the governor notwithstanding, for the reason that the Republicans, or the minority party, is not permitted in this bill to name their choice on the board, and for the reason I am *214pledged to the maintenance of the present election law. J. R. Thompson.

“Mr. Todd made the following motion: Mr. Speaker, I move yon that,- whereas, House Bill No. 759 has passed the house, the objections or veto of the executive to the contrary notwithstanding, that the clerk be instructed by the house to transmit said bill to the senate, together with the governor’s veto message, as having passed the house, the veto or objections of the executive to the contrary notwithstanding.

“The motion prevailed.”

What weight should be accorded the journal! What authority, under the constitution, has the judicial department of our State government in respect of such a matter!

When called upon to accredit any apparent act of the legislature, we should feel sure it is indeed such an act. There is no duty to obey an act which is not genuine. If we find it in the book of the acts for the current legislative year published by authority, we should always, nothing else appearing, give it due credit. But recognizing the right, accorded by our constitutional law, to parties litigant to question whether such supposed act really passed the legislative bodies, we should always, when such question is made, examine the legislative journals to solve the doubt so raised. If the point made be that one of the houses was not duly organized, on a given day, we will examine that point in the light of the evidence which *215onr law justifies. We will examine the journals. But right here it seems to me that a very important distinction arises. It is this. Where there is no question that the body making the journal is composed of a quorum, capable of legislating, the language of the journal made by it should be given the benefit of every reasonable doubt as to things done, or attempted to be done, in such houses, in the passage of bills, or other acts done in course of legislation, or in the progress of the two bodies towards legislation; and even silence on the part of the journal should not be counted against it as to any particular thing, but every presumption should be in favor of regularity, and, if possible apparent omissions should be supplied by inferences from those things which appear. In short, in such a case the journals must affirmatively show some constitutional defect in the manner of the legislation. Such is the effect of our decisions. Braver v. State, 86 Tenn., 732, 737, 9 S. W., 166; State v. Algood, 87 Tenn., 163, 168, 10 S. W., 310; Nelson v. Haywood Co., 91 Tenn., 596, 604, 20 S. W., 1; State v. McConnell, 3 Lea, 333; Williams v. State, 6 Lea, 553; State, ex rel., v. Baseball Chib, 127 Tenn., 309, 154 S. W., 1151, and cases cited; Telegraph Co. v. Nashville, 118 Tenn., 1, 101 S. W., 770, 11 Ann. Cas., 824, and cases cited; State v. Swiggart, 118, Tenn., 556, 102 S. W., 75, and cases cited; Richardson v. Young, 122 Tenn., 565-569, 125 S. W., 664; Jackson v. Manufacturing Co., 124 Tenn. 424-425, 137 S. W., 757. But in none of these cases *216was any question made as to the existence of a quorum in the legislature at the time a hill was passed. It is manifest that this high grade as evidence should not be accorded to the journal of a body challenged as not duly constituted for want of a quorum. When the body is in this nascent form, it has, under our constitution, no right except to adjourn from day to day, and wait the coming of a quorum. To say that a body challenged ns being in this incomplete form should have accorded to its record all of the presumptions attaching duly to a constituted body is tantamount to cutting off all inquiry, and so saying that any number of persons ■elected to membership in a legislative body (if at the beginning of the legislative term there has been effected an organization, with a speaker and clerk) may, •on any day subsequent to the original organization, assemble with the speaker and clerk, at the ascertained place, and assume to be a quorum, and by such mere assumption prevent all investigation of their claims. Such assupmtion is but saying, in another form, “We who are assembled here claim to be a quorum, therefore we are a quorum.” If such assumption could ever be indulged under our constitution, there would be no need for the provision that, when a number less than a quorum are present, they have the right to ‘ ‘ adjourn from day to day, and may be authorized by law, to compel the attendance of absent members.” Even a majority of one of the houses has no power to declare a quorum when none exists. A quorum is de*217termined by a call of the roll. It is not a matter of judgment, or one requiring a technical decision. An assumption by a majority, or even a distinct declaration that it is two-thirds of the whole, or a quorum, cannot make it so. It is true that where one of the houses assumes that a quorum is present (in cases where the constitution does not require the ayes and noes to be entered on the journals), and proceeds with business on that assumption, unchallenged, the court will be bound to indulge the same presumption; but that will not prevent the ascertainment of the real facts, on proper evidence. The nature of that evidence has been already indicated. Whether there can' be any other, or whether lapse of time, even a comparatively brief time, with the journal remaining unquestioned, would so obscure all the sources of knowledge as to render practically impossible all reasonable inquiry into such a matter, need not now be considered. Obviously the doings of a body challenged at the time as not being a quorum must be closely examined, with a view to fair, just, and reasonable interpretation. If, in the previous history of the body during the legislative term, as shown by the journal, the custom, as alleged in the bill in this case, had been each day up to March 28th, when an adjournment to April 1st was taken, to call the roll for the purpose of ascertaining the existence of a quorum, and on the special day in question the roll was not called, this fact would immediately arrest the attention of any *218investigator. But if no question was made at the time by anyone, and the body proceeded as if complete, nothing else appearing, there would he ground for inferring, and the presumption would be, that the presence of a quorum had been ascertained in some other manner, and existed. But if we find, as appears in the case before us, that some member of the body, in the exercise of his constitutional right, attempted to make the question of no quorum, and to have it entered on the journal, as his objection, or protest under the constitution, and that this was refused, and suppressed, and instead of calling the roll, and ascertaining the fact, in this simple way, all investigation was cut off, and the body proceeded as if a quorum was present, and attempted to show that enough members were present to make a quorum by the mere fact of the speaker’s “answering for” such and such members, when their names were called on the ayes and noes in the passage of a bill saying simply, “Not voting” — there can be no doubt that such a so-called journal discredits itself. Here we have, without any reason apparent except to make the semblance of a quorum, the violation of a daily practice of calling the roll, the suppression of all inquiry, as to the existence of a quorum, and the speaker, without venturing to name them as “present,” simply announcing, “Not voting,” when the names of thirty-five members were called. We can give no credence to such a record. It not only fails to show a quorum present, but furnishes a *219■convicting basis for the conclnsion that there was no ■quorum. The concurrence of all of these facts is consistent with no other conclnsion.

I do not donbt that either of onr legislative chambers wonld have the right to pass a rnle giving the speaker power to note the presence of members actually present, bnt not answering to their names. This is fnlly established by the reasoning in the case of United States v. Ballin, 144 U. S., 1, 12 Sup. Ct., 507, 36 L. Ed., 321.

"Whether the speaker, without such rule, would have the power, is another question. The constitution does not prescribe what the power of the speaker should be. It must therefore be true that, being a servant of the house over which he presides, he can have only such power as it confers on him, and may have all such powers as may be thus conferred, not in violation of some provision of the constitution. It may also be laid down as true that where there is no rule ■conferring a power exercised by the speaker, in a given instance, but a duly constituted house submits to the exercise of a power by him, that power must be held to have been rightly exercised, if not in violation ■of some provision of the constitution.

But it is obvious that this principle could not obtain or hold good where there was no previous rule conferring the power, and it does not appear that the house was at the time duly organized so as to confer the power by its acquiescence. In brief, such a power *220could not exist for the purpose of organizing the house, in the absence of a rule, or for the purpose of ascertaining a quorum at any time in the absence of' such rule. And for this good reason: We cannot assume in any given case that members are present andi will not answer, because the contrary presumption in favor of duty must prevail, in favor of all members.. If this presumption is to be overturned by the decision of one man, he must have that great power conferred: on him from some source, power to witness conclusively the presence and the failure of duty. That power can be conferred upon that single person only by the-houses. It might be conferred on the clerk, or on any other person, but it could not exist without being so-conferred.

The power, it is observed, is to note the presence of one who is actually present but who does not answei" to his name. Suppose a rule should be passed attempting to confer upon the speaker the power to declare a quorum by simply calling the names of members and noting them as “not voting,” without regard) to whether they were present or absent. I think that such a rule would be unconstitutional, as putting it within the power of the speaker to declare a quorum when none existed, and thus giving over legislative-power to a number of members less than that prescribed by the constitution. A fortiori, the mere act of the speaker in having certain names called, and? .noting the persons bearing those names simply as not' *221voting, conld not be held equivalent to “present and not voting,” or to an announcement'that these persons were present but were not voting. State, ex rel., v. Ellington, 117 N. C., 158, 23 S. E., 250, 30 L. R. A., 532, 53 Am. St. Rep., 580.

I am of the opinion therefore that the journal shows that no quorum was present on April 3d.

The next question arises on the action of the house on June 21st.

Bill 759 was passed on March 27th by the house, was transmitted to the senate and passed in that body, and was thence transmitted to the governor of the State for his signature. On April 1st, Gov. Hooper vetoed the bill, transmitting it with his veto message to the house of representatives, in which body it hád originated. On April 3d, when no quorum was present, the house undertook to pass the bill over the governor’s veto and, assuming that this had been accomplished, transmitted the bill to the senate, and it was there passed and then transmitted by the latter body to the secretary of state for enrollment, as a law of the State.

Subsequently the bill of Webb v. Carter was ..filed attacking the constitutionality of the action of the two bodies on April 3d, on the ground that no quorum was in the house when the bill was passed over the governor’s veto in the latter body.

After this, the action of June 21st was taken, which is thus evidenced by a copy of the journal of the house of that date:

*222“Mr. Cos sent a written statement to the clerk’s-desk, and npon request of Mr. Cox the clerk read the motion, and the bill as therein set out, as follows:

“Mr. Speaker:

“I move the following procedure of the house:

“Whereas the bill known as ‘House Bill No. 759,’ which is as follows:’.’ (Here followed a copy of the bid in full) “was passed by this house on the third day of April, 1913, the governor’s veto notwithstanding; and

“Whereas, it has been objected by the governor and others that the- bill did not pass the house for the alleged reason that less than the number of members necessary to be present to enact bills were then present ; and

“Whereas, in view of the public nature and the importance of this bill all matters of controversy as to its enactment should be determined:

“Now, therefore, the said bill is hereby repassed, the governor’s veto notwithstanding (here result of vote), and it is ordered that the clerk of the house transmit to the secretary of State a duly certified copy of these proceedings.

“Mr. Cox moved the previous question.

“The motion prevailed.

‘£ Thereupon the clerk called the roll on the adoption of the motion of Mr. Cox, with the following result:”

Then followed the names of fifty-three representatives voting, “Aye,” and eighteen voting, “No.”

*223It is perceived that a copy of the proceedings was directed to be sent to the secretary of State, and it is-not directed that the hill should be transmitted to the senate, nor does it appear that the bill was thereafter so transmitted. From the fact that a copy of the proceedings was thus ordered to be transmitted to the secretary of State, that nothing is said about transmitting the bill, and from the further fact that Bill No. 759 appears in the published acts as chapter No. 37, and as passed on April 3, 1913, in both houses, we think the inference is irresistible that the house was never in actual possession of Bill No. 759 after April 3d, when it was placed in the hands of the senate; that on June 21st it was in the hands of the secretary of State; and that the house, on June 21st, acted only on a copy of the bill which had been procured, or was in possession of some member of the house. No other conclusion will fit all of the facts stated.

However, I shall consider the question on the assumption that the bill was itself in the house on June 21st; that although on April 3d it had been bodily, though illegally, placed in the hands of the senate, and thence in the hands of the secretary of State, it had been procured and had come into the possession of the house, that is, the original bill and not a copy merely.

The question to be determined on the basis is whether the due passing of the bill on June 21st could have any effect towards making it a law without its. subsequent passage in the senate, on lawful transmission to that body by the house.

*224In order to make clear my view upon this matter, I shall briefly sketch, in the language of the constitution the course of a bill from its inception through, the two houses to the governor, a veto by the governor, and then the passage of the bill over the governor’s veto.

“Constitution, art. 2, sec. 17.

“Bills may originate in either house; but may be amended, altered or rejected by the other.

“Sec. 18. Every bill shall be read once, on three .different days, and be passed each time in the house where it originated', before transmission to the other.”

This section further provides:

“No bill shall become a law until it shall have been read and passed, on three different days in each house, and shall have received, on its final passage in each house, the assent of a majority of all the members to which that house shall be entitled under this constitution; and shall have been signed by the respective speakers in open session, the fact of such signing to be noted on the journal; and shall have received the approval of the governor, or shall have been otherwise passed under the provisions of this constitution.”

“Art. 3, sec. 18. Every bill which may pass both houses of the general assembly, shall before it becomes a law, be presented to the governor for his signature. If he approve, he shall sign it, and the same shall become a law; but if he refuse to sign it, he shall return it with his objections thereto, in writing, to the house *225in which it originated; and said house shall canse said objections to be entered at large upon its journal, and proceed to reconsider the bill. If after such reconsideration a majority of all the members elected to that house shall agree to pass the bill, notwithstanding the objections of the executive, it shall be sent, with said objections, to the other house by which it shall be likewise reconsidered. If approved by a majority of the whole number elected to that house, it shall become a law. The votes of both houses shall be determined by yeas and nays, and the names of all the members voting for or against the bill shall be entered upon the journal of their respective houses. If the governor shall fail to return any bill, with his objections, within five days (Sundays excepted) after it shall have been presented to him, the same shall become a law without his signature, unless the general assembly, by its adjournment, prevents its return, in which case it shall not become a law.”

It is thus perceived that a bill must originate in one of the houses, must be read and passed on three different days in that house, before its transmission to the other house, must then be transmitted to the other house, where it must go through the same course, must be signed by the respective speakers, must then be transmitted to the governor, must be acted on by his signature, or his retaining the bill without signature for five days, or must be vetoed by him; that, in case of his veto, he must transmit the bill to the house *226wherein it. orginated, and mnst accompany its transmission with his yeto message; that the honse to which it is so transmitted mnst enter the governor’s veto at large npon its journal, and mnst again act npon the bill; if that honse again pass the bill notwithstanding the veto, the bill then “shall be sent with said objections to the other honse, by which it shall be likewise reconsidered.” If approved by both houses in this manner, the bill shall then become a law.

It is perceived that the exact sequence of events is laid down in precise terms in the constitution. After the bill was passed on June 21st, as already stated, it was not thereafter transmitted to the senate, nor passed on by the senate; hence, under the terms of the constitution, it could not become a law, since it requires the action of both houses to convert a bill into a law, along with the functions of the governor above indicated.

But it is insisted that inasmuch as there was a quorum in the senate on April 3d, and that body passed the bill by the usual three readings, the absence of a duly constituted house, that is, a house composed of a quorum, to pass the bill on April 3d, could be cured by the action of that body had on June 21st. The position taken, as we understand it, is that the order or sequence of events provided for in the constitution is immaterial, that these provisions are merely directory and not mandatory. The effect of this contention is. that a bill originating in the house may be passed on in the senate before it is voted on in the house, and *227vice versa; likewise, that a bill originating in the honse,, and vetoed by the governor, may be voted on in the senate before it is voted on in the honse after snch veto.

If a hill must follow the order of progress laid down in the constitution, Bill No. 759 never legally passed out of the control of the honse of representatives. That honse having no quorum on April 3d had no constitutional power to send the hill to the senate, and the senate had no constitutional power to receive it, hence had no constitutional power to act on it, and hence its attempt to act on that bill was void. The senate having thus obtained possession of the hill withont authority of the constitution, and hence in a manner that conferred no jurisdiction upon it, the constitutional custody of the bill remained with the house until June 21, 1913, on which day it was passed by a quorum. It; should then, and not until then, have been transmitted’ to the senate. This was not done, so it remains a bill passed only by one house, the house of representatives.

The foregoing conclusions are sound if it be material that the exact order be followed as laid down in the constitution. If that order can be varied, and if it only be necessary that the bill shall have been passed by both houses over the veto regardless of whether both houses had legal possession of the bill, then it became a law when subsequently passed in the house on June 21st. The question then to be considered is-whether the exact order laid down in the constitution is essential.

*228Is that provision of the constitution directory which declares that when the governor disapproves a hill he shall transmit it to the house in which it originated, and that that house, on passing it 'over the veto, shall transmit it to the other house?

If one part is directory, all of the parts are. But the word “shall” is used -with each step. If the house can constitutionally transmit such a bill to the senate before itself acting on it, or a number of members-less than a quorum can do this, then it seems with equal reason the governor may in his discretion transmit a senate bill with his veto to the house, or a house bill to the senate. Is there any good reason underlying the constitutional order? There is. It is evident that those who originated any legislation in question on any occasion are in the house where the bill was first introduced. They are more particularly interested than any others in seeing the bill become a law, and are therefore more likely to be vigilant and active in securing its passage over the veto. The great personal interest which a member takes in a bill originated by him, “his bill,” is a matter of common knowledge. If the governor can send the bill to the other house, the house in which it did not originate, he can, for a time, at least, stifle this earnest, personal advocacy. The bill may linger in the house to which he has sent it "until the ardor of its special advocate cools or 'dies ont. Furthermore, the governor may be stronger in the house to which he has chosen to send it, and his friends there may be able to so obstruct the *229bill that it will not he acted on at all during the session, or action on it may be so delayed that, through the intervention of other legislative business, it may reach the other house too late for action there before the close of the session. The effect of holding constitutional such a course would he to add to the personal power of the governor, and to detract much from the power of the legislature.

View the question from another angle: Suppose the governor properly transmits a bill with his veto to the house in which it originated, and suppose it is a measure of monmentous importance on which parties are closely divided, and on which popular feeling is running high, and suppose the governor’s reasons for the veto are weighty, and evoke strong popular support, and suppose the house in which the bill originated, and to which it had been so returned, wishes to avoid the.responsibility of taking the initiative in overriding the veto and thereby repudiating the reasons given in the veto message, which we may suppose as stated, to be very strong and very popular, and from such motives that house wishes to place the responsibility on the other house of acting first. If the matter is discretionary, as suggested, this could be done. This would result, if valid, in the imposition by one house on the other of a duty for no other reason than that the first wished to escape the responsibility of performance. Let us suppose the body so wishing to escape or postpone responsibility is the housé. It avoids the duty and hands it over to the senate, and that body *230is called on to act. Bnt that body is co-ordinate and may insist the duty cannot be imposed. It has the power to refuse, and there is no authority known to onr system which conld compel it to act. Suppose it does refnse. We then have the spectacle of a bill being thrown from one house back to the other, and from that back to the first, and so on indefinitely. On the other hand, if the order laid down in the constitution be binding, there never can be any doubt in any instance as to the duty of each body and the method that should be pursued.

If the constitutional order can be departed from— that is, if it is directory instead of being mandatory— the people can never fix responsibility or impute blame to their legislative representatives, since, if each body has the discretion suggested, no one can say which is in the wrong. Yet the only court of appeal which the body of the people have for the correction of error., or the punishment of faithlessness on the part of their representatives, is the ballot box. But if the courts hold that the criteria of action which the people have prescribed in the constitution are simply directory and may therefore be obeyed or disobeyed as the legislature may see fit, what is there left by which the people can judge their representatives? This consideration is of the greatest importance, because it lies at the very foundation of representative government.

The danger in holding constitutional provisions directory is great, in any instance, but especially so as to those which concern action by the legislature. The *231courts, by so doing, can quickly destroy every barrier which the people have erected for their protection against usurpation by the lawmaking body. “One of the first things a student of our system of government learns is that it is a system of checks and balances. One of the principal checks upon legislative power is the authority of the court to enforce obedience to the mandates of the constitution by adjudging void enactments which conflict with its provisions. History proves, and experience demonstrates, the necessity of such a check, for without it the legislative department arrogates to itself every substantial governmental function and power that it can grasp. . . . The change wrought by legislative usurpation and encroachment justifies the statement of Mr. Bagehot that ‘a legislative chamber is greedy and covetous. It acquires as much, it concedes as little, as possible. The passions of its members are its rulers; the lawmaking faculty, the most comprehensive of the imperial faculties, is its instrument. It will take the administration if it can take it.’ Eng. Const. (Am. Ed.), 95. The great men who framed our constitutional system knew and provided against the dangers of legislative usurpation of power, and the wisest among them united in devising checks upon it The declarations of Madison and "Washington are strong and clear, and no reader of history can misunderstand their meaning, or doubt their purpose. Jefferson thus expressed his conviction: ‘An elective despotism was not the government we fought for, but one which should not only be founded *232on free principles, tint one in which, the powers of government should be so divided and balanced among several bodies of magistracy as that no one should transcend their legal limits without being effectually checked and restrained by others.’ ‘To preserve these checks,’ said a greater thinker than Jefferson, ‘must be as necessary as to institute them.’ Washington’s Farewell Address.” Elliott, J., in Parker v. State, 133 Ind., 178, 209, 32 N. E., 836, 845, 18 L. R. A., 578, 579.

1 am of the opinion, therefore, that the court should deal most sparingly, and exercise the very greatest caution, in holding any constitutional provision directory.

Such is the rule laid down, in substance, in Black’s Constitutional Law, p. 78, where it is said:

“The provisions of a constitution are almost invariably mandatory. It is only in extremely plain cases, or under the pressure of necessity, that they can be construed as merely directory.”

In 8 Cyc., p. 762, it is said:

“The great majority of all constitutional provisions are mandatory, and it is only such provisions as from the laguage used in connection with the objects in view may be said to he addressed to the discretion of some person or department that courts have held to be directory, and these provisions in most cases have been those addressed to the legislative department with reference to the mode of procedure as to the enactment of laws as above stated. But provisions of this kind *233will be treated as mandatory if the language used justifies it, even though the proceedings to which they refer are hut formal. Whatever is prohibited or positively enjoined must he obeyed; therefore all prohibitions and restrictions are necessarily mandatory. So also all provisions that designate in express terms the time or manner of doing acts, and are silent as to performance in any other manner, are mandatory and must he followed.”

Judge Cooley, in .his work on Consttiutional Limitations (5th Ed.), pp. 93, 94, gives it as his view that the whole doctrine of directory provisions in a constitution is inadmissible, using the following language:

“But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to he done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and, if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not therefore to expect to find in a constitution provisions *234which, the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegates as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due' appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themelves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.”

The author admits that there are a few reported cases to the contrary, and these he discusses in the succeeding pages and expresses the opinion that they are against the weight of authority. He quotes with approval our case of Cannon v. Mathes, 8 Heisk., 517, wherein Nicholson, C. J., said:

“In the present case, we do not deem it necessary to express an opinion as to the question whether any provision of the constitution can be properly treated otherwise than as mandatory. The essential nature and *235object of constitutional law being restrictive npon tbe powers of tbe- several departments of government, it is difficult to comprehend bow its provisions can be regarded as merely directory.”

It is true that in a later case (Telegraph Co. v. Nashville, 118 Tenn., 1, 101 S. W., 770, 11 Ann. Cas., 824) this conrt, in an opinion by Mr. Justice Wilkes, did bold a certain provision of tbe constitution directory; but it is apparent from an examination of tbe opinion tbat tbe court did so only after the most careful scrutiny, and with a full appreciation of tbe danger attendant upon bolding any constitutional provision directory, and in view'of tbe fact that there bad been a practical construction of tbe point by the legislature for a long period during which nearly 200 acts, many of them very important, covered by tbe provision and practice in question bad been passed; and further in view of tbe fact that an attentive examination of tbe very language of tbe constitution in which tbe subject involved was expressed seemed to clearly indicate that that provision was intended to be directory; and further reinforced by tbe consideration that a contrary view would place it in tbe power of a negligent or corrupt clerk of tbe senate or bouse, without tbe knowledge of either, to nullify tbe most important legislation. It was not deemed that tbe people in establishing the constitution could have intended to subject legislation to such constant menace of negligence or fraud, on the part of subordinate officers of tbe body having no part in the making of laws.

*236The last expression of the court on the subject is found in State v. Burrow, 119 Tenn., 376, 104 S. W., 526, 14 Ann. Cas., 809. In this case the court quotes with approval the language of Judge Cooley, supra, and lays down the general rule that every provision of the constitution should be held mandatory, and admits an exception to that rule only in the case where it can be ascertained unmistakably and conclusively from the language of such special provision that it was intended to be directory only. The opinion on the subject, delivered by, our former chief justice, now United States senator, Shields, is couched in terms so appropriate and so strong that we deem it proper to reproduce his language, in part, at least:

‘ ‘ Constitutions are expressions of the sovereign will of the people, the fountain of all power and authority. The several departments of the government are created and vested with their authority by them, and they must exercise it within the limits and in the manner which they direct. The provisions of these solemn instruments are not advisory, or mere suggestions of what would be fit and proper, but commands which must be obeyed. Presumably they are all mandatory. Certainly no provision will be construed otherwise, unless the intention that it shall be unmistakably and conclusively appears upon its face. The supremacy of and permanency of republics depend upon the maintenance of the fundamental law, in its integrity, as written in constitutions adopted by the people; and it is the solemn duty of all those temporarily vested with *237power, in all departments of the State, to do this. The necessities of a particular case will not justify a departure from the organic law. It is by such insidious process and gradual encroachment that constitutional limitations and government by the people are weakened and eventually destroyed. It has been well said:

“ ‘One step taken by the legislature or judiciary in enlarging the powers of government opens the door for another, which will be sure to follow, and so the process goes on until all respect for the fundamental law is lost, and the powers of government are just what those in authority please to make or call them.’ ”

It may be useful to quote some observations in point from the decisions of other States.

In Varney v. Justice, 86 Ky., 596, 601, 6 S. W., 457, 459, it is said:

“Whenever the language (of the constitution) gives; a direction as to the manner of exercising a power, it was intended that the power should be exercised in the manner directed, and in no other manner.- It is an instrument of words, granting powers, restraining powers, and reserving rights. These words are fundamental words, meaning the thing itself; they breathe no spirit except the spirit to be found in them. To say that these words are directory merely is to license a violation of the instrument every day and every hour.”

This language was quoted with approval in the opinion of Bennett, J., in the later case of Norman v. Ken*238tucky Board of Managers, 93 Ky., 537, 20 S. W., 901, 18 L. R. A., 560.

In Parker v. State, 133 Ind., 178, 196, 32 N. E., 836, 841, 18 L. R. A., 567, 574, it is said:

“Constitutional provisions are seldom, if ever, to be constrned as merely directory.”

The supreme court of West Virginia said:

“Constitutional provisions are organic. They are adopted with the highest degree of solemnity. They are intended to remain unalterable except by the great body of the people, and are incapable of alteration without great trouble and expense. They are the framework of the State as a civil institution, giving cast and color to all its legislation, jurisprudence, institutions, and social and commercial life by confining the legislature, the executive, and judiciary within prescribed limits. All the great potential, dominating, creative, destroying, and guiding forces of the State are brought within their control so far as they apply. Thus, to the extent of their duration, they define and limit the policy of the State more rigidly and unalterably than the sails and rudder of the ship when set govern and control its course. A more apt figure is made up of the great system of highways, including railroads, fixing the mode, courses, and extent of travel and transportation.” Capito v. Topping, 65 W. Va., 587, 591, 64 S. E., 845, 846, 22 L. R. A. (N. S.), 1091, 1092.

What has been said in the preceding paragraphs, whether by way of reasoning, or in the language of authorities quoted, seems to me to present insuperable *239objections to onr holding as merely directory the provisions of onr constitution referred to.

But I wish to add a few words more. I wish to call special attention to the use of the word “shall.” All through the provisions quoted the people of the State in making their constitution use that authoritative and compelling word — a word which leaves no doubt of the purpose of one who uses it, having at the same time power to enforce his will. Thou shalt, and thou shalt not. These are the dominant expressions of a controlling will. It is most interesting, instructive, and impressive to read the constitution through, and note how often the people use therein the expressions we have just referred to — “shall,” and “shall not,” or their equivalents. A few instances will suffice: “That no political or religious test, other than an oath to support the constitution of the United States and of this State, shall ever be required as a qualification to any office or public trust under this State.” Article 1, section 4. “That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.” Id., sec. 6. “That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the facts committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous.to liberty, and ought not *240to be granted.” Id., sec. 7. “That no man shall be taken or imprisoned, or disseised of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, bnt by the judgment of his peers or the law of the land.” Id., sec. 8.

But why need I go further, and furnish other examples? It is already perceived that by these words, “shall” and “shall not,” the people have endeavored to preserve, and save from harm, their most sacred rights of life, liberty, property, and the pursuit of happiness; that by these they have sought to guard every man from oppression and to guarantee right and justice to all. Can we hold these words as merely directory in the passages we have quoted? If not, what warrant have we that their imperative meaning is lost in subsequent parts of the constitution?

It may be said that the result would have been the same in the present instance, if the constitutional order had been followed, that the senate would have again passed the bill by substantially the same vote as before; therefore that the question is immaterial. Who can say that a change of opinion might not have occurred, among the members of the senate? But grant that no change would have occurred, and that the result of another vote would have been the same. Would this be true of every future violation of the constitutional order? It must not be overlooked that we are not only deciding the case before us, but laying down also a rule of constitutional duty to be followed in sue-*241ceeding cases, and by the legislature in its future conduct. Is it a sound and true principle that the legislature and this court will be justified in disregarding a command embraced in the constitution, when we are-satisfied the result will be the same as it would be if we obeyed it? It is provided in article 1, section 9,. that “in all criminal cases the accused hath the right to be heard by himself and his counsel.” We may conceive a case wherein the accused, though a weak and ignorant man, employed very able and competent counsel who represented him in the trial court. On his conviction and appeal to this court, and error assigned to the effect, and sustained by the record, that he.had demanded to be heard in person, and this right had been denied him in the trial court, would this court consider it a sufficient answer that he was weak and ignorant, his speech, or talk to the court and jury would have done him no good, the evidence was conclusive,, and the result would have been the same? Assuredly, no. The same section provides that the prisoner has-the right to a copy of the indictment. Would a refusal of this right, on demand from him, be excused in this court on the ground that it would have done him no-good, that the indictment was read in his presence when he was put on trial before the jury? This court, has held to the contrary. Moses v. State, 9 Baxt., 230; Noltes v. State, 6 Cold., 297. In the same section it is provided that the accused has the right to a “speedy public trial, by an impartial jury of the coun*242ty in which, the crime shall have been committed.” ■Suppose the trial was had in secret over the prisoner’s objection, and his demand for the public trial guaranteed him by the constitution, would this court, for one instant, excuse that denial on the ground that the result would have been the same? Suppose he had been tried by an “impartial jury” of another county than the one in which the crime had been committed, when he had not asked for a change of venue, would this court fail to promptly reverse the judgment? The court has answered this question in no uncertain way. Kirk v. State, 1 Cold., 344; State v. Donaldson, 3 Heisk., 48. In article 6, section 12, it is provided that all indictments shall conclude, “against the peace and •dignity of the state.” Could a failure to so conclude .an indictment be excused by us on the ground that it was an immaterial matter, and the result would have been the same? This court has answered, no, that the •constitutional provision is imperative, and must be obeyed. Rice v. State, 3 Heisk., 215, 221. Yet it is •difficult to see why the constitution required this language to be used. The same section provides that “all writs and other process shall run in the name of the State of Tennessee.” Why could not a case be tried just as well-with the writ running in the name of one •of the great cities of the State? But this court has .said, no,- such a writ is void. Mayor and Aldermen v. Pearl, 11 Humph., 249, 250. Why could it not run in the name of one of the courts of the State ? This court has said such a writ is void. McLendon v. State, 8 *243Pick. (92 Tenn.), 520, 525, 22 S. W., 200, 21 L. R. A., 738.

What is the principle underlying all of these cases'? Simply, that our duty is not to ask the reason why, when the mandate is plain; not to question why another way would not do as well, but simply to obey. As said by Mr. Justice Buchanan, quoting’ with approval an author mentioned by him: “ ‘Where the legislature has used words of plain and definite import, it would be very dangerous to put upon them a construction which would amount to holding that the legislature did not mean what it had expressed.’ In a recent . . . work on Statutory Law, it is said that the intention of the legislature is to be learned from the words it has used; . . . and, if that intention is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpretation or con struction, and the judges are not at liberty, on consideration of policy or hardship, to depart from the words of the statute; that they have no right to make exceptions or insert qualifications, however abstract justice or the justice of the particular ease may seem to require it.” Heiskell v. Lowe, 126 Tenn., 475, 499, 153 S. W., 284, 290.

If this order was immaterial, why was section 18, of article 3, laying down in precise terms what shall be done in case of a veto by the governor, embraced for the first time in the constitution of 1870, when it did not appear in that of 1796, or that of 1834? A comparison of the three instruments shows that the *244constitution of 1796 was before the convention of 1834, and that changes and additions were made, matters omitted, and matters added, when the latter constitution was made; likewise it is apparent that both constitutions were before the constitutional convention of 1870, and that other excisions and additions were made. The constitution of 1870 established the new matter covered in article 3, section 18. Can this be regarded as an immaterial circumstance, and the new matter likewise immaterial, to be obeyed or disobeyed as may seem proper or convenient to the legislature? "Why was the convention of 1870 at so much pains to add this new matter, after an inspection and comparison of the two former constitutions, if it was to be disregarded at will? By this new matter the governor was for the first time given the veto power. By it that power was regulated, and the action of the legislature in respect thereof as well. One is as imperative as the other. I have shown in a former part of this opinion that there are excellent reasons for the rule of legislative action thus laid down; but, even if there were no such reasons, still it was the simple duty of the legislature to obey the directions given. Having failed to obey the constitution, their act was nugatory, and it is the duty of the court, as I conceive, to so hold and decide.

If I am correct in the proposition that the order of events, the due course of legislation, is essential, the action of the senate on April 3d was, as previously said, void because there had been no previous constitutional *245.action in the house, in which the hill originated. For .a like reason, the action of the house on June 21st could not cure the previous void action of the senate, and •could have no effect at all because there was no subsequent action of the senate. On the same principle, the .action of the house on June 21st could not relate back do April 3d so as to make the action of the house in legal effect antedate .that of 'the senate. If such fiction of relation should be indulged, it would subvert the constitutional order as effectually as an open and •designed effort on the part of the two legislative bodies to subvert that order. Such supposed curative action would as surely violate the constitutional policy as if there had been no previous attempt in the house. The thing to be cured would be the .fact that the senate had ¡acted prior to the house; the latter under the constitution being required to act first. The cure on the assumption of relation is to be effected, if at all, by the Rouse still acting subsequent to the senate, but treating that action as if it had in fact been prior; in short, by the operation of a legal fiction. Constitutional powers cannot be so conferred, or exercised. Again, the ■right of the legislature to pass curative acts is based •on its authority to enact legislation, to make good now, by an act of legislation, what it could have made good prior thereto if called upon, or to correct some defective exercise of its own legislative power on some former occasion; but here, in the special ease before us, the difficulty is not in the exercise of legislative power, but in the failure to occupy a certain constitutional *246status, the absence of which status made the house, at the time, being without a quorum, no legislative body at all. By sustaining the proper status at a subsequent time, it could not change the fact that on a former day it did not have that status, or supply the lack of that status. The power resides in the constitution as an expression of the will of the people, not in the legislature. By having a quorum and being organized, a branch of the legislature stands in such relation to the constitution as that it is a legislative body, and capable of exercising constitutional power. A constitutional status on a subsequent day cannot relate to a former day and .cure a lack of status existing at that time. The body purporting to act on the former day without a quorum was simply no legislative body. Nothing can alter that fact. Such was the assemblage of men purporting to act as the house on April 3d.

Reference is made in the opinion of Mr. Justice Lans-den to Archibald v. Clark, 112 Tenn., 532, 82 S. W., 310. As I understand the reference, it is made for the purpose of showing that the order in which the two houses shall consider a bill is immaterial. In my judgment that case is incapable of that construction, and so are the cases which subsequently cite it with approval. The court was not considering, and did not have in mind, in any degree, the subject which we are now discussing, but only whether the bill, under the practice pursued, had had three readings in each house. It was adjudged that it had, because the same bill had been introduced in each body, had two readings in each, had *247a third reading in the honse, a transfer then to the-senate, and a third reading there. The practice is not. a wise one, and is more honored in the breach than in the observance, because it enables the passage of a bill through the two houses during three days7 time instead of six; but there is nothing in the constitution that prevents the same bill being introduced simultaneously in the two houses, and thus being at the same time both a house bill and a senate bill. In such a case each house would proceed in the regular course to consider its own bill, but the one first succeeding in passing the bill upon its third reading would transmit its-bill to the other house, and it would there be substituted for the bill of that house, and be passed; this passage in such other house being treated as a passage-on its third reading in that house because it had already, in the form of a bill of that house, passed two-readings. It is perceived that the question is not one of due progression from one house to the other, but only as to whether there had been three readings in each house. The due order of constitutional progression was recognized and followed, on final reading,, when the house bill was transmitted to the senate, and was there passed. In such a ease the bill is finally treated as a bill originated in the house in which it first' passed its third reading. Archibald v. Clark is therefore not an authority for the proposition that the constitutional order is immaterial, but rather the contrary. The fact that this case is cited for such a purpose emphasizes the danger of departing from con--*248.stitutional provisions even in appearance, because precedents of this kind may be tbe fruitful origin of •other precedents which will lead us far beyond real ■constitutional bounds.

For the reasons stated, I am of the opinion that House Bill 759 was never constitutionally passed, and therefore that chapter 37 of the Acts of 1913 is void.

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