108 Mich. 136 | Mich. | 1895
Lead Opinion
This case involves the question of the validity of an act of the legislature passed previous to the last five days of the session, and approved by the governor after the adjournment of the legislature. Its determination depends on a construction of section 14, art. 4, of the Constitution, which reads as follows:
“Every bill and concurrent resolution, except of adjournment, passed by the legislature, shall be presented to the governor before it becomes a law. If he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon their journal, and reconsider it. On such reconsideration, if two-thirds of the members elected agree to pass the bill, it shall be sent with the objections to the other house, by which it shall be reconsidered. If approved by two-thirds of the members elected to that house, it shall become a law. In such case the vote of both houses shall be determined by yeas and nays; and the names of the members voting for and against the bill shall be entered on the journals of each house respectively. If any bill be not returned by the governor within ten days, Sundays excepted, after it has been presented to him, the same shall become a law, in like manner as if he had signed it, unless the legislature, by their adjournment, prevent its return; in which case it shall not become a law. The governor may approve, sign, and file in the office of the secretary of state, within five days after the adjournment of the legislature, any act passed during the last five days of the session; and the same shall become a law.”
. It is contended on behalf of the respondent that, under the previous Constitution, the governor might lawfully sign a bill at any time within 10 days after its passage; that his neglect to return the bill, with reasons for not signing, within 10 days, was equivalent to a signature, unless the legislature, by adjourning, prevented such return, in which case it would not become a law, unless he signed it within 10 days. It will be noticed that the Constitution nowhere fixes a time within which the governor shall sign bills, except as it may be inferred to be 10 days, from the provision that an act shall become a law without signature if 10 days after its passage shall expire during the session. If this inference is not a legitimate one, the conclusion is irresistible that, under the former Constitution, the governor had unlimited time after adjournment within which to sign bills, or that he must sign during the session. If we were construing the provision of the earlier Constitution, we should therefore feel justified in concluding that the governor might sign a bill within 10 days after its passage, though the legislature should have meantime adjourned. We are aware that there are weighty authorities against this construction, notably the carefully considered and elaborately reasoned case of Fowler v. Peirce, 2 Cal. 165, which appears to have been the earliest case involving the question. On the other hand, many cases have taken a different view of the subject. People v. Bowen, 30 Barb. 24, 21 N. Y. 517; Lankford v. County Commissioners, 73 Md. 105; State v. Fagan, 22 La. Ann. 545; State v. Supervisors of Coahoma Co., 64 Miss. 365; Solomon v. Commissioners of Cartersville, 41 Ga. 157. The Georgia case, however, appears to be based upon the fact of usage. To what extent, if at all, this provision was given a construction by usage previous to 1850, we are not advised. The signing of bills after adjournment has been practiced since.
If, under the provision as previously existing, a doubt was entertained of the validity of acts signed after adjournment, the convention might well think it best to set the question at rest. In such case, it is apparent that members would be likely to entertain different opinions about the power of the governor to sign bills after the adjournment of the legislature, as well as the time to be allowed for that purpose. Some may have thought that the governor’s power was unlimited, and that acts might become laws' by virtue of his signature appended at any time after adjournment. Others may have thought the time to be limited to 10 days by the language of the Constitution relating to the return of bills with reasons. Others still may have taken the ground that bills must be signed before adjournment to give them effect. Apparently, the only light attainable was the common practice. The presidents made a practice of signing during the ses
We discover no reason based upon public policy for saying that the governor should not be permitted to sign bills after the houses adjourn. The strongest argument against it is found in the California case, and this rests upon the proposition that the governor, when approving an act, exercises a legislative function, which, if necessary, may be admitted without also admitting that he must sign before the two houses adjourn. The practice of the presidents has some force, but it is, at best, only negative proof of a construction, and may have been continued if it did not originate from abundant caution to avoid possible consequences. The fact that President Lincoln departed from it even in one instance is of great weight, as it shows that construction to have been disre
The last provision of the section, if necessary to confer ■a power to sign after adjournment, applies only to the bills passed within the last five days; but if not necessary to confer a power, because already existing, it, must then be a limitation; and the question here is whether there is a necessary implication that the previously existing power was intended to be removed. To an extent, we think, there is. Clearly, it precludes signing bills passed during the last five days of the session, after the expiration of the period of five days after the adjournment. It is silent about the power as to other bills, because, under existing provisions, the signature was restricted to the same period. No consideration of public policy is urged why the governor should not sign bills after adjournment. The effect of relator’s construction would be to give a bill passed the fifth day before adjournment the full period of 10 days within which it might be signed, while bills passed one day earlier would have but five. No reason is suggested for such a discrimination, and to our minds it is more reasonable that the convention should have supposed that all bills were to be signed within 10 days after passage,
“ The cardinal rule of construction concerning language is to apply to it that meaning which it would naturally convey to the popular mind, in all cases where the propriety of such construction is not negatived by some settled rule of law.” People v. Dean, 14 Mich. 406, 417.
“Constitutions are to be construed as the people construed them in their adoption, if possible; and the public history of the times should be consulted, and should have weight in arriving at that construction.” Bay City v. State Treasurer, 23 Mich. 499.
“ Constitutions, as well as statutes, are to be construed in the light of previous history and surrounding circumstances. The language is not to be measured by mathematical rules merely, but is subject, in the nature of things, to numerous implied exceptions or qualifications.” Kennedy v. Gies, 25 Mich. 83.
“Constitutional provisions must be construed with reference to each other when relating to the same subject-matter.” Root v. Mayor, etc., 3 Mich. 433; Dullam v. Willson, 53 Mich. 392.
“The framers of a Constitution are presumed to have a knowledge of existing laws, and to act in reference to that knowledge.” People v. May, 3 Mich. 598, 610.
We are cited to instances where this construction has been given to this section by the governors, and there are numerous acts whose validity depends on the question involved here. If the question were more doubtful than it is, we might properly consider the force of a practical construction of co-ordinate branches of government, acquiesced in by the general public for a long period. In commenting upon this subject, Mr. Justice Cooley says:
“ Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed*143 all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind.” Cooley, Const. Lim. (6th Ed.) pp. 83, 84.
He supports it by numerous cases. See, also, Attorney General v. Glaser, 102 Mich. 409; Hart v. McElroy, 72 Mich. 453; People v. Maynard, 15 Mich. 470; Hovey v. State, 119 Ind. 386; Biggs v. McBride, 17 Or. 640; Castro v. De Uriarte, 16 Fed. 93; Cooley, Const. Lim. (6th Ed.) pp. 84-86, and notes; Stuart v. Laird, 1 Cranch, 299.
Our attention is called to instances where the governors of this State have signed bills under similar circumstances, one as early as 1873, and many since.
Another question needs notice, and this calls for a brief statement of facts. The act in question was “An act to authorize the city of Detroit to take private property for the use and benefit of the public,” approved June 4, 1895. Act No. 467, Local Acts 1895. On August 28, 1895, the proceedings in this case were commenced under a former statute. It is now contended that this act terminated the pending proceedings, and the court so held. This, we think, was right. There was no saving clause, and its effect was to repeal the existing law. See Key v. Goodwin, 4 Moore & P. 341; Stoever v. Immell, 1 Watts, 258; Butler v. Palmer, 1 Hill, 324; Hampton v. Com., 19 Pa. St. 329; Sedg. Stat. & Const. Law (2d Ed.), 112. The act is materially different from the one repealed by it, and therefore does not fall within the decision in Moore v. Township of Kenockee, 75 Mich. 332, which was exceptional, and in which the rule above stated is recognized. Id. 340. These proceedings were not pending when the law was passed, being commenced but three days before it took effect.
We conclude, therefore, that the action of the governor
The writ is denied.
Dissenting Opinion
(dissenting). When the decision in this case was handed down, I was unable to concur in either the reasons or conclusions reached by my brethren. I had not then had the time to make the investigation which I desired. A more thorough and careful examination than I had then been able to make has confirmed me in my conclusions.
There was some purpose for adding to this section as it stood in the Constitution of 1835 the following clause: “The governor may approve, sign, and file in the office of the secretary of state, within five days after the adjournment of the legislature, any act passed during the last five days of the session; and the same shall become a law.” Only three possible purposes can be suggested: (1) The limitation of a power already existing; (2) the removal of any doubt as to the existence of a power; (3) the creation of a power where none before existed, or was believed to exist.
In discussing the question, the following propositions may be laid down as nearly axiomatic:
1. If the Constitution of 1835 conferred the power upon the governor to sign bills after the legislature had adjourned, and it had been so construed by the executive, the legislature, and the people, the amendment to this article in the Constitution of 1850 was without reason, because it conferred no right that did not exist before.
2. If there was doubt about this power under that Constitution, and in the convention some members denied the power, and others affirmed it, it follows that the sole purpose of the amendment was to put the entire question at
3. If the power did not exist under the old Constitution, and it had been so interpreted and acted upon by the executive, the legislature, and the people for 15 years, then the sole purpose of the amendment was to extend the power beyond the day of adjournment, and to limit it as therein provided.
We obtain no light from the report of the convention •debates of 1850, for there is no record there of any debate upon this provision. It was reported from the committee ■early in the session, was finally referred to the committee •on phraseology, and changed in one or two immaterial matters. Whichever one of the above propositions is ■accepted as the true one, the same result, in my judgment, •conclusively follows, viz., that no power exists to sign bills after the legislature adjourns, except as provided in this clause. No canon of interpretation permits any other conclusion. The rule, “Inclusio unius est exclusio ■alterius,” applies to this casé, if to any. I shall, however, I think, be able to demonstrate that the first two propositions are not applicable, and that it must be determined upon the last one.
Prior to 1850, the date of the adoption of the present Constitution, no decision upon this point had been rendered by any court in the United States. The earliest case is that of Fowler v. Peirce, 2 Cal. 165, decided in 1852, in which it was held that the Constitution of that State, which was in the exact language of the Constitution •of the United States and that of 1835 in this State, did not empower the executive to sign bills after the legislature had adjourned. It is there said: “A practical exposition, entirely different from such a construction, has always been given by Congress, and the legislature of every State having similar constitutional provisions.” I have not time or material at my "command to demonstrate the truth •of this statement, even if it were of importance. The
This provision of the Constitution of the United States is in the exact language of that of 1835. Congress and the presidents have always, since the foundation of the
“Power to approve an act after the adjournment of Congress: On the 3d of March, 1863, Congress passed ‘An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States.’ On the 4th of March that Congress was adjourned sine die, under the Constitution, and that act had not received the signature of the president. On the 12th of the same March (within the 10 days), President Lincoln signed it, and it was printed with the other acts of that Congress. Under its operation, a large amount of property came into the possession of the executive; but it was not thought wise to attempt to administer upon it in the courts, without a recognition by the lawmaking power, whichishould practically amount to its re-enactment. Accordingly, Congress, on the 20th of July, 1864, passed ‘An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary States, and to provide for the collection of captured and abandoned property, and the preven*148 tion of frauds in States declared in insurrection.’ This statute practically re-enacted the previous act, with amendments, and thus disposed of the difficulty.”
I cannot concur with my brethren in saying that this is a recognition on the part of President Lincoln of the power here asserted. On the contrary, it is, in my judgment, additional proof that he did not consider the law valid. Had he so believed, he would undoubtedly have acted upon it.
It would not be complimentary to the intelligence of the members of the convention of 1850, many of whom were leading men of the State, and lawyers, and some of whom had been members of Congress, to say that they were not familiar with this practical construction placed upon this provision of the Constitution by the different legislatures and by the governors of this State, and also with the construction which up to that time had been, without any exception, placed by Congress and the presidents, most of whom had been distinguished lawyers, upon the identical article in the Constitution of the United States. Can there be, under this state of facts, any other logical conclusion than that the framers of the present Constitution understood and believed that no such power existed in the executive; that they recognized the injustice and inconvenience of compelling the executive to sign all bills passed on the closing days of the session, as had been universally done before; and that their sole purpose was to create an authority which did not exist before ? Is it not also absurd to say that that convention intended to give a shorter time to examine bills passed during the last five days of the session than those passed within a few days previous ?
If I am correct in this conclusion as to the Constitution of. 1835, then the whole basis of the respondent’s contention and the opinion of my brethren falls to the ground. The sole basis upon which the respondent seeks to establish the power is that it existed under the old Constitution. If this were so, he is then driven to the — in my judgment —absurd conclusion that the framers of the Constitution
“So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions which establish them are equivalent to a declaration that the legislative power shall be exercised under these forms, and shall not he exercised under any other. A statute which does not observe them will plainly be ineffectual.” Cooley, Const. Lim. (6th Ed.) p. 209.
Four methods are expressly provided for in this Constitution by which bills passed by the legislature shall become laws, viz.: (1) By the express approval of the governor, evidenced by his signing bills within 10 days after they are presented to him, the legislature being in session; (2) by his approval implied from his neglect to sign within 10 days, the legislature being in session; (3) by passing the bill over his veto; and (4) by his express approval, evidenced by his signing any bill passed during the last five days of the session within five days after adjournment. Where an express limited power is conferred by a Constitution, it excludes the existence of any greater or unlimited power. For 23 years after the adoption of the present Constitution, no governor signed any bill or joint resolution after the legislature had adjourned except those
It is insisted, however, that the governors have, during and since 1873, signed several bills, which were passed before the last five days of the session, after adjournment, and that this amounts to a practical construction. This might have some force if such usage had commenced immediately after the adoption of the Constitution, and continued for a long series of years. It is shorn of its force by the adoption of the contrary usage by the governors, the legislatures, and the people. Neither governors, nor any other officials, nor the legislature, can change the plain provisions of the Constitution, or change a practical construction when once it has been adopted by constant usage, extending over a long period. I quote with approval the words of Mr. Justice Cassoday in State v. Cunningham, 82 Wis. 48:
“ It is to be remembered that even praiseworthy objects cannot be rightfully attained by a violation of law. Every effort to fritter away the plain language of the Constitution, by way of construction or otherwise, even to secure a desirable end, is nothing less than an insidious*151 attempt to undermine the fundamental law of the State, and hence, to that extent, destructive of good government, besides being vicious in its tendencies.”
See, also, Oakley v. Aspinwall, 3 N. Y. 568; Cooley, Const. Lim. (6th Ed.) p. 87.
Practical construction is not a shuttlecock, to be used to mean one thing today and another tomorrow, as expediency may suggest. Where doubt exists, and where practical construction has once been firmly established by usage, it is as binding, lasting, and sacred as though it were incorporated in the Constitution in express terms. It hardly needs the citation of authorities to show that this construction, contemporaneous with, and immediately, and for a long series of years, following, the adoption of this Constitution, must control. I will, howeyer, refer to one authority, where the question is fully discussed and the authorities cited,—McPherson v. Secretary of State, 92 Mich. 377; same case in 146 U. S. 3. There, as here, it was sought to set aside a construction which had been placed upon a provision of the Federal Constitution immediately succeeding its adoption by the various States of the Union. It was contended that all the States had for many years prior to 1892 adopted a contrary interpretation by legislative enactments, to the effect that the State shall act as a unit in'the choice of presidential electors. We held that there was no force in such contention, and that the construction which the people had first given it must prevail. The decision was affirmed by the Supreme Court of the United States, and for the same reasons given in this court.
In 1873 the governor signed one bill passed before the last five days. So, in 1877, the then governor signed another. We find no explanation why those two bills were thus overlooked. Probably, it occurred from the hurry of the closing days of the session. We are cited to several other similar acts in 1889, and again a few in 1893. So far as most of the acts of 1889 are concerned, it is far more reasonable to suppose that the governor signed them
None of the authorities cited in the majority opinion are under a Constitution at all similar to our own. The only decision under a similar Constitution is in direct conflict with that opinion, as I read it. The provision in the Minnesota Constitution reads as follows: ‘ ‘ The governor may approve, sign, and file in the office of the secretary of state, within three days after the adjournment of the legislature, any act passed during the last three days of the session, and the same shall become a law.” Burns v.
The respondent here contends — and upon that theory alone can his contention be sustained — that the five-day limit has no effect upon or application to bills passed before the last five days of the session. To what extent will the advocates'of this rule of construction carry it? Suppose a governor shall in the future, for some reason, sign a bill 15 or 20 days after the legislature adjourns, and other governors subsequently follow his example; will that be another practical construction, and affirm the right of the governors to sign bills at any time they choose ? Such was the contention in People v. Bowen, 21 N. Y. 517, the principal case upon which respondent relies. Upon this point the majority opinion says:
“ It is argued that, upon the construction which I have suggested, no time whatever is fixed within which bills are, in such cases, to be signed; and that, if it can be-done after the adjournment, it may be done at any indefinite period thereafter, and that the inconvenience would arise that it might remain a long time uncertain whether a measure which has received the assent of both branches of the legislature should eventually be a law or not. This consequence will certainly follow unless there is an implication arising out of the fixing of a period of 10 days for the consideration of bills presented to the governor while the legislature remain in actual session. It is plain that the authors of the Constitution considered that period sufficiently long for the performance of that duty; and I think he would not be justified in acting upon a bill after his ten days had elapsed, whether the session continued or not.”
That decision is, in my opinion, an act of judicial ingraftment, based upon a supposed necessity, and not a • precedent of construction which ought to be followed.
I deem it unnecessary to discuss the other authorities cited. The case of People v. Bowen was by a divided
I think the writ should be granted.