of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act, so au law are not the subject of allegation or denial in pleading, nor of proof upon the trial of causes; but that courts would always take judicial notice of the law, and that, upon the suggestion of any doubt as to the existence or provisions of a parliamentary enactment, the court would inform itself in the best way it could, not by listening to proofs, but by inspection of the record, if it was in existence, and, if not, by looking to the printed statute, or, failing that, by examination of other documents where it had been recited, recognized, and acted upon. The record which, as long as it existed, was held to import absolute verity, which not only dispensed with, but excluded, all other evidence, which could nei-thenticated, is in conformity with the Conther be aided nor impeached by the journals of Parliament, was the copy of the act enrolled by the clerk of the Parliament and delivered over into chancery. The question frequently arose in England, but the rule was uniformly maintained that the courts would look to the statute roll, and to that alone." The issue is also well considered in State ex rel. George v. Swift, 10 Nev. 176, 21 Am. Rep. 721 Green v. Weller, 32 Miss. 650; Carr v. Coke, 116 N. C. 223, 28 L.R.A. 737, 47 Am. St. Rep. 801, 22 S. E. 16; People v. Devlin, 33 N. Y. 269, 88 Am. Dec. 377; and many other cases. The authorities bearing on all phases of the inquiry will be found collected in the opinion and note to Atchison, T. & S. F. R. Co. v. State, 40 L.R.A. (N.S.) 1. The Supreme Court of the United States held an enrolled act duly authenticated and on file with the secretary of the state conclusive proof of the law as passed by Congress, in Marshall Field & Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495, where, speaking through Harlan, J., it said: "The signing by the Speaker of the House of Representatives, and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two Houses of such bill as one that has passed Congress. It is a declaration by the two Houses, through their presiding officers, to the President, that a bill thus attested has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill thus attested receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled act in the custody of the Secretary stitution. It is admitted that an enrolled There the court held it not competent to show from the journals of the House and other evidence that the enrolled bill as passed contained a section not found in the enrolled act in the office of the Secretary of State. Enough has been said and quoted to clear ly indicate the grounds of our conclusion | been promulgated as therein prescribed, and that the enrolled bill on file with the secre- only then, does it become a law of the state. tary of state is the ultimate proof of its This does not relieve either house of the passage in the form there appearing, and obligation under § 17 of article 3 of the that beyond this the courts cannot go in as- Constitution, from seeing to it that the yeas certaining whether the legislature complied and nays on the final passage of every bill with the requirements of the Constitution. are entered on its journal. This is to be The authorities seem about evenly divided actually complied with, and only when so as to whether resort may be had to the done, and it appears that a "majority of journals of the houses, but there is a de- all members elected to each branch of the cided tendency in recent decisions to hold general assembly" have assented thereto, is that the enrolled bill is conclusive evidence the bill to be "signed by the speaker and of its passage as it appears. In the last president of their respective houses." Secedition of Sutherland on Statutory Con- tion 15 of article 3. Thereby the presiding struction, at page 72, the author observes officer of each house certifies to the passage that "it is no longer true that 'in a large of the bill in conformity with the requiremajority of the states' the courts have held ment of the Constitution and the rules of that the enrolled act may be impeached by the respective houses, and such certification a resort to the journals. A comparison will may not be impeached by the very fallible show that the courts are now about equally record of some clerk ordinarily made up divided on the question. The current of from hastily prepared memoranda, for the judicial decision in the last ten years has preservation of which the law makes no been strongly against the right of the provision, or other evidence of like charcourts to go back of the enrolled act. Un- acter. The respective houses having certidoubtedly, the decision of the Supreme fied to the passage of a particular bill in Court of the United States in Marshall the manner prescribed by the fundamental Field & Co. v. Clark, supra, has had much law, it is not competent for the courts to to do in creating and augmenting this cur- inquire whether the general assembly-a rent; but it may also be due to the greater co-ordinate branch of government has obsimplicity, certainty, and reasonableness of served the requirements of the Constitution the doctrine which holds the enrolled act devolving upon it, and inquire whether its to be conclusive. Many courts and judges, certification is true. Such a course would while feeling compelled to follow former de- be inconsistent with the independent charcisions holding that the enrolled act may acter of the legislative department, which be impeached by the journals, have done so necessarily must pass on the manner of per- reluctantly, and have expressed doubts as forming its duties, though, as previously obto the validity of the doctrine, and in many served, the extent of its powers as defined cases, as will appear in the following sec- by the Constitution is appropriate matter tions, have qualified and restricted it in im- for judicial inquiry. A bill may be preportant particulars." sented to the governor for approval only after it has passed both houses, and the only authentication of the bill in form or substance as being that which has been passed is the signature of each presiding officer, and only when so signed and approved, or approval omitted for three days, is it deemed a verity, and the courts will not get behind the enrolled bill to ascertain whether the legislature complied with the requirements of the Constitution in its adoption. In other words, the certification through the presiding officers by the general assembly is deemed conclusive evidence that the bill was passed as exacted by the Constitution. Dissatisfaction with the contrary rule has been expressed in the following cases: Webster v. Little Rock, 44 Ark. 536; People ex rel. Barnes v. Starne, 35 Ill. 121, 85 Am. Dec. 348; State ex rel. Godard v. Andrews, 64 Kan. 474, 67 Pac. 870; State ex rel. Casper v. Moore, 37 Neb. 13, 55 N. W. 299. In State ex rel. Hoover v. Chester, 39 S. C. 307, 17 S. E. 752, previous decisions were overruled. The entire field on both sides has been covered in the decisions of other states, and we have sought only to indicate the reasons which have been persuasive to us in reaching the conclusion that the enrolled bill duly authenticated as exacted by the provisions of the Constitution is conclusive, not only that it passed the general assembly, but that it so did in the form of the enrolled bill. In other words, the several sections of the Constitution are mandatory, and when an act has What has been said, perhaps, indicates with sufficient definiteness our conclusion that the signature of the speaker was essential to the validity of the enrolled bill. Courts holding that resort may not be had to other than the enrolled bills to ascertain is to be measured the power which can be exercised as well by the delegate 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 themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leaving as little as possible to implication." their enactment by the general assembly | governed, and to form a standard by which are unanimous in deciding that the signature of the presiding officer of each house is essential as proof of their passage, and that the omission of either is fatal to the bill. 26 Am. & Eng. Enc. Law, 2d ed. 545. Moreover, the greater number of those deciding that the journals of the respective houses or other evidence may be resorted to for the purpose of ascertaining whether constitutional requirements as to the manner of passing a bill have been observed entertain the same view, and declare the omission of the signature of either presiding officer from the enrolled bill fatal. State ex rel. Atty. Gen. v. Platt, 2 S. C. 150, 16 Am. Rep. 647; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28. See 26 Am. & Eng. Enc. Law, 2d ed. 545; Lynch v. Hutchinson, 219 Ill. 193, 76 N. E. 370, 4 Ann. Cas. 905; State ex rel. Coffin v. Howell, 26 Nev. 93, 64 Pac. 466; State ex rel. Scarborough v. Robinson, 81 N. C. 409; Jones v. Hutchinson, 43 Ala. 721; Legg v. Annapolis, 42 Md. 203; State v. Kiesewetter, 45 Ohio St. 263, 12 N. E. 807. Manifestly, this is because of the very tenable theory that all provisions of the Constitution, unless the contrary appears therefrom, are to be regarded as mandatory. It is hard to understand arguments construing any portion of the fundamental law as discretionary, for, if so, there could be no adequate reason for including it therein. As observed by Judge Cooley in his work on Constitutional Limitations (page 94): "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 be 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 which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in This is expressive of the view entertained by the great weight of authority, and there appears no sound reason for not holding, in accord therewith, that the section of the Constitution under consideration (§ 15 of article 3), in exacting the signature of the speaker of the house as well as that of the president of the senate, is essential to the authentication of the bill in form and substance, as well as, in certifying its passage, to its validity as a statute of this state. All are presumed to know the law, and it is of highest importance to each citizen, as well as to the public officer, that there be an authentic record to which he may resort to ascertain certainly and definitely what laws are enacted by the legislature which control him, and which he is bound to observe at his peril. Whatever conduces to certainty in this respect is of great moment to every person in the state, and no rule of construction would be wise which would leave so important a matter to doubt or uncertainty. Our conclusion that the enrolled bill must be signed by both the speaker of the house and the president of the senate, and that when so signed and approved by the governor, or approval omitted, under circumstances defined in § 16 of article 3 of the Constitution, is conclusive that it has been properly enacted, and has become a valid statute of the state, accomplishes this, and we need only add that, in consequence thereof, chapter 214 of the Acts of the 33d General Assembly, not having been signed by the speaker, is not and never was a part of the laws of this state. Affirmed. Deemer, Ch. J., and Evans, Gaynor, an instrument which, for a time at least, Preston, and Salinger, On Rehearing. vesting of rights. 2. The rights of a beneficiary in an ordinary life insurance policy become vested upon the issuance of the policy, and can thereafter, during the life of the benficiary, be defeated only as provided by the terms of the policy. Same Kansas Mutual Company. In the recent Kentucky case of Sea v. Conrad, 155 Ky. 51, 47 L.R.A. (N.S.) 1074, 159 S. W. 622, it was held that a paid-up "old line" life insurance policy, taken by a man for the benefit of his wife, was within a statute providing that upon divorce the court shall restore any property which either party may have obtained directly or indirectly from or through the other during marriage, and in consideration or by reason thereof, and therefore that a wife who was named as beneficiary in such an old line Perhaps the most important of the recent decisions is FILLEY V. ILLINOIS L. INS. Co., wherein it was held that the question as to whether a policy of life insurance or a benefit policy issued to one for the benefit of another vests a present interest in the beneficiary depends not upon the name or nature of the company, but on the terms of the policy, the existing statutes, and the by-laws, if any, by which such company and its policy holders are bound; and apply-life insurance policy which became paid up ing this rule, that a policy issued to a member of a mutual benefit society, which policy provided that the benefits should be paid to such person's wife, naming her, was payable to the named person, although some years thereafter she secured a divorce, and the insured was thereafter again married to one who sustained the relation of wife to him for several years and until his death, it being shown that after such remarriage the insured kept the annual dues and demands paid, and made no attempt to change the beneficiary. before the parties were divorced was by such divorce devested of all beneficial interest therein, although the policy was left in the possession of the wife, the husband having collected the dividends upon it. And the meaning of the term "dependent upon" as used in the by-laws of a fraternal benefit association and a statute governing such associations, limiting beneficiaries and payment of death benefits to those dependent upon the insured, was determined in Johnson v. Grand Lodge, A. O. U. W. 91 Kan. 314, 50 L.R.A. (N.S.) 461, 137 Pac. The general rule that a wife's interest 1190, wherein it was held that a woman as beneficiary in an ordinary or old line who has obtained a divorce from her former life insurance policy is not affected by a husband and a judgment for alimony is not divorce where under the policy the hus- entitled to be regarded as a dependent upon band had the right to change the bene-him so that after his death she may colficiary, but did not do so, was held in the case of Guthrie v. Guthrie, 155 Ky. 146, 159 S. W. 710, to be applicable to an insurance policy, the parties named in which were divorced in Illinois, the decree in the divorce suit having made no award with reference to it, and it not appearing that there was any statute in Illinois providing for the restoration upon divorce of property obtained through marriage. And in Salvin v. Salvin, 165 App. Div. 362, 151 N. Y. Supp. 60, it was held that the interest of a beneficiary in an ordinary life insurance policy payable to "B., the wife of the insured," was not terminated lect an insurance policy issued by such an association while she was still his wife, and naming her as beneficiary, although the judgment for alimony is still uncollected, upon the mere showing that such judgment is uncollected, without showing that there is no way in which the judgment can be satisfied. Snyder v. Supreme Ruler, F. M. C. 122 Tenn. 248, 45 L.R.A. (N.S.) 209, 122 S. W. 981, which is cited in the note in 39 L.R.A. (N.S.) 370, was affirmed on another point in 227 U. S. 497, 57 L. ed. 611, 33 Sup. Ct. Rep. 292. G. J. C. fraternal benefit association, but was prac-tained a divorce absolute, and thereby tically an old line life insurance company, claiming no right, title, or interest in said although it collected money to meet its death benefit, ceased to be the wife of obligation by so-called annual dues instead Clarence E. Filley, and ceased to sustain of by premiums. any relationship to him, as fully as if he had never existed, and would not have an insurable interest, nor any interest, in his life by virtue of insurance upon his life, except to kill him to obtain the benefit accruing thereby. On Petition for Second Rehearing. Same vesting of interest termines. what de4. Whether a policy of life insurance or a benefit policy issued to one for the benefit of another vests a present interest in the beneficiary depends, not upon the name or nature of the company, but on the terms of the policy, the existing statutes, and the by-laws, if any, by which such company and its policy holders are bound; and when such policy is issued to a member for the benefit of a proper beneficiary, then, in the absence of some statute, by-law, or contract to the contrary, the beneficiary thereby be comes vested with an interest which cannot be destroyed at the will of the insured. Same divorce continuing policy. 5. Such a policy issued to a member of a mutual company, providing that the death benefit should be paid to such member's wife, naming her, entitled her to such benefit, although some years before the death of the insured she was divorced from him; it being shown that after such divorce and after his remarriage the insured kept the annual dues and demands paid and made no attempt to change the beneficiary. A (January 10, 1914.) PPEAL by plaintiff from a judgment of the District Court for Shawnee County in favor of defendant Fannie E. Filley, and from an order denying a motion for new trial, in an action brought to recover an amount alleged to be due on a benefit certificate. Affirmed. The facts are stated in the opinion. Messrs. Eugene S. Quinton, Joseph G. Waters, and John Calhoun Waters, for appellant: That the death benefit was payable to the status, wife of Clarence E. Filley, at the time of his death, is conclusively supported by the certificate. People v. Hovey, 5 Barb. 118; Tyler v. Odd Fellows' Mut. Relief Asso. 145 Mass. 134, 13 N. E. 360; Riley v. Riley, 75 Wis. 464, 44 N. W. 112. Fannie E. Filley, having sought and ob | Heyman v. Meyerhoff, 16 W. N. C. 212; Miltimore v. Miltimore, 40 Pa. 151; Flory v. Becker, 2 Pa. St. 470, 45 Am. Dec. 610; Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; Bishop, Marr. & Div. § 697a; Bell v. Smalley, 45 N. J. Eq. 478 and note, 18 Atl. 70; Barrett v. Failing, 111 U. S. 523, 28 L. ed. 505, 4 Sup. Ct. Rep. 598; 2 Nelson, Div. & Sep. 1024; Fletcher v. Monroe, 145 Ind. 56, 43 N. E. 1053; Stewart, Marr. & Div. § 430; Missouri Valley L. Ins. Co. v. Sturges, 18 Kan. 93, 26 Am. Rep. 761; State v. Winner, 17 Kan. 298; May, Insurance, § 398; Hatch v. Hatch, 35 Tex. Civ. App. 373, 80 S. W. 411; 3 Am. & Eng. Enc. Law, 2d ed. 943. line policy, but a beneficial assessment polThe policy is not an ordinary life or old icy. Johnson v. Grand Lodge, A. O. U. W., 91 Kan. 314, 50 L.R.A. (N.S.) 461, 137 Pac. 1190; 3 Am. & Eng. Enc. Law, 1043, 1045, 1046. The interest of the beneficiary did not vest at the issuance of the policy, but was conditional. 40 Cyc. 197, 198; Re Edmondson, L. R. 5 Eq. 389, 16 Week. Rep. 899; Talmadge v. Seaman, 85 Hun, 242, 32 N. Y. Supp. 906; Smith v. Proskey, 39 Misc. 385, 79 N. Y. Supp. 851; Stewart v. Harriman, 56 N. H. 25, 22 Am. Rep. 408; Smaw v. Young, 109 Ala. 528, 20 So. 370; Hawkins v. Bohling, 168 Ill. 214, 48 N. E. 94; Temple v. Scott, 143 Ill. 290, 32 N. E. 366; Lewis v. Howe, 174 N. Y. 340, 66 N. E. 975, 1101; 25 Cyc. 891. The beneficiary must have an insurable interest, regardless of what the rules and regulations of the companies may be. 25 Cyc. 889; Hatch v. Hatch, 35 Tex. Civ. App. 373, 80 S. W. 411; Goldsmith v. Union Mut. L. Ins. Co. 18 Abb. N. C. 325; Order of R. Conductors v. Koster, 55 Mo. App. 186; Tyler v. Odd Fellows' Mut. Relief Asso. 145 Mass. 134, 13 N. E. 360; Riley v. Riley, 75 Wis. 464, 44 N. W. 112. Messrs. J. H. Stavely, A. K. Stavely, and Thomas M. Lillard, for appellee: The policy is an ordinary life policy of the old line type. Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind. 192, 10 N. E. 79, 11 N. E. 449; Boice v. Shepard, 78 Kan. 308, 96 Pac. 485; |