133 Tenn. 632 | Tenn. | 1915
delivered tlie opinion of tlie Court.
Tlie original bill was filed herein by tbe city of Johnson .City, claiming certain rights under House Bill No. 19 of the general assembly of 1915, and predicating said rights upon the enactment of said bill into law, according to the requirements of the constitution. The Tennessee Eastern Electric Company demurred, the chancellor overruled the demurrer and decreed that House Bill No. 19 was a law, and that complainant was entitled to the writ of mandamus sought by its supplemental bill. The Electric Company appealed and has assigned errors in this court.
We need not discuss the second and third assignments of error. They are predicated on the existence of certain defenses which do not appear on the face of complainant’s bill, and which defendant cannot have advantage of by demurrer. The only matter available to defendant under its demurrer was its assault on the validity of House Bill No. 19. A copy of that bill is as follows:
*635 “House Bill No. 19.
“(Mr. Barnes), An act to authorize the president and secretary of the State hoard of education to certify expenses for lighting the State Normal at Johnson City, and to provide for the payment of such expenses. - .
“Section 1. Be it enacted by the general assembly of the State of Tennessee that the president and secretary of the State board of education be and they hereby are authorized and directed to certify to the comptroller of the treasury 'the necessary éxpenses for lighting the State Normal School at Johnson City from the final passage of this act, provided that payment for current shall not exceed five cents per kilowatt hour.
“Sec: 2. Be it further enacted, that the comptroller of the treasury shall disburse the moneys for the expenses so certified in the manner prescribed by law for’ the disbursement of money to charitable institutions. .
“Sec. 3. Be it further enacted that this act take effect from and after its passage, the public welfare requiring it.
“Passed March 30th, 1915.
“William P. Coopeb.,
“Speaker of the House of Representatives.
‘£ Albert E. Hill, “Speaker of the Senate.”
“This bill vetoed by the governor, and veto sustained by the house of representatives.”
The following is a copy of a message from the governor addressed to the speaker of the house of representatives setting out the objections of the governor to House Bill No. 19:
“To the speaker of the house of representatives. I am returning House Bill No. 19 without my approval, for the reason that the contract made and entered into by and between Johnson City and the State Board of education expressly provided that free lights and water would be furnished the school in the event the same was located at that place. Therefore the furnishing of lights free to this school was a part of the consideration agreed to be paid by Johnson City, for the location of the same.
“Tom C. Rye, G-overnor.
“May 4, 1915.”
House Bill No. 19 originated in the house and passed the house and senate in all respects as required by the provisions of section 18 of article 2. It was then signed by the respective speakers in open session, and the fact of such signing noted on the journal. The date of its passage in the house was March 30, 1915. It was then presented to.the governor, and this occurred on April 1, 1915. The bill remained in the hands of the governor continuously from the last above date to May 4, 1915, on which day his excellency returned the bill to the house in which it originated with his objections
On April 3, 1915, both houses of the general assembly, by joint resolution adjourned, not sine die, but to meet again on May 3, 1915, on which latter date that body again assembled pursuant to adjournment.
Prom the foregoing it is apparent that excluding the day the governor received the bill and including the day it was returned with his objections to the house in which it originated, this bill was continuously in his hands for the space of thirty-three days. Under the facts which are not in dispute the controversy between the parties is narrowed to a single question. What is meant by “adjournment” in section 18, art. 3, of our constitution?
At this point two rival contentions arise. First, appellant insists that, under section 18, article 3, of our constitution of 1870, the return of a bill with his objections thereto in writing, which is required to be made by the governor, if he refuse to sign it, must be made to the house in which the bill originated, at a time when there is present in that house a quorum of its members competent to a reconsideration of the bill or other transaction of legislative business. Second, ap-pellee insists that such return may be made to some officer, agent, or employee of the house chargeable, within the meaning of the constitution, with the duty of placing before the house for its reconsideration, the •returned bill, and the objections of the governor there
Section 18 of article 3 is as follows:
“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 in which it originated; and said house shall cause 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 journals 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. Every joint resolution or*639 order (except on questions of adjournment), shall likewise he presented to the governor for his signature, and before it shall take effect shall receive his signature; and on being disapproved by him shall, in like manner, be returned with his objections; and the same, before it shall take effect, shall be repassed by a majority of all the members elected to both houses, in the manner and according to the rules prescribed in' case of a bill.”
It is manifest from a reading of the foregoing section that if the insistence of the appellant be the true postulate from which we should proceed, that is to say, if the return must be made to the house when a quorum of its membership is present, then the meaning of the phrase in the above section, “unless the general assembly by its adjournment prevents its return” is that any adjournment which would result in the ab-sense of a quorum would be such an adjournment as would prevent the return of the bill, and therefore it would result that the governor could not return a bill during adjournment if the house in which it originated had adjourned for midday luncheon, or had adjourned at night until the following morning, or had adjourned for any longer period of time, or had finally adjourned.
If we should adopt the above conclusion it would necessarily result in a holding that the time during which the house in which the bill originated was temporarily adjourned could not be counted against the time limiting the governor’s right or power to return
The sound insistence is the one made by appellee. “Adjournment,” as used in the phrase above quoted from the constitution, means final adjournment. The framers of the constitution must have known that each house of the general assembly which would meet after the adoption of the Constitution of 1870 would have a committee on enrolled bills. Such a committee is necessary to the orderly administration of legislative business. Such a committee existed in each house of tlie general assembly of Tennessee prior to the adoption of the Constitution of 18701, and has existed since the adoption of that constitution. Soon after the adoption of the Constitution of 1870, in fact at the session of the general assembly of the year 1871, legislation was passed, which now appears as sections 227 to 230, inclusive, of Shannon’s Code. These sections are as follows:
“Section 227. Every bill, joint resolution, or order, except on questions of adjournment, shall, after the*641 same has been passed, enrolled and signed by the speakers of both houses of the general assembly, be presented by the committee on enrolled bills of that house wherein snch bill, joint resolution, or order, originated, to the governor for his signature; and said committee shall report that they have presented the bill, joint resolution, or order to the governor for his signature, and the date of such presentation, which report shall be entered on the journal of that house to which such committee belongs: Provided, that no bill, joint resolution, or order shall be presented to the governor as aforesaid until the time for moving a reconsideration shall have expired, unless expressly or-dered by that house wherein such bill, joint resolution, or order originated: And provided further, that the speaker of the senate shall first sign all bills and joint' resolutions originating in the senate, and the speaker of the house of representatives shall first sign all bills and joint resolutions originating in the house of representatives.
“Sec. 228. If the governor shall fail to return any bill, joint resolution, or order, with his objections, within five days (Sundays excepted) after it shall have been presented to him, it shall be the duty of the committee on1 enrolled bills of that house wherein such bill, joint resolution, or order originated to cause said bill,, joint resolution, or order forthwith to be reenrolled; and the samé shall thereupon be signed by the re*642 spective speakers of each house, who shall annex and sign the following certificate:
“ ‘This bill (joint resolution or order) having been presented to the governor for his signature on the -day of-, and the governor having failed to return it within the time prescribed by law, the same is hereby declared to have become a law (or, in case of a joint resolution or order, the same is hereby declared to have taken effect). This - day of -, 18-,
“ ‘Speaker of the House of Representatives.
£ C £_
“ ‘Speaker of the Senate.’
‘ “Sec. 229. If the governor approve the bill, joint resolution or order, he shall write upon the same, to the left of and below the signature of the speaker of the two houses, the fact and date of his approval, as follows: ‘Approved-, 18— ’ and shall sign the same as follows: ‘-, governor.’
“Sec. 230. When any bill, joint resolution, or order shall have been returned duly signed by the governor, or shall have been passed over his veto, or shall otherwise become a law, the committee on enrolled bills of that house wherein such bill, joint resolution, or order originated, shall forthwith file the same- in the office of the secretary of State, and shall report the fact and date of such filing, which report shall be entered upon the journal.”
The house in which a bill originates is a parliamentary body, and must, so far as the manual possession of its journals, bills and enrolled bills, resolutions and the like, is concerned be represented by agents. It has custody of such things through its agents, and al
Only one contingency can save a bill from becoming a law, where the governor fails to return it with his objections, to the house where it originated within the time limited; “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.” Such is the unmistakable mandate of the constitution. House Bill No. 19 was not returned during the time limited within which power was vested in the governor to return it with his objections; its return was not prevented by final adournment of the assembly; therefore the bill became a law at the expiration of the time limited, and its subsequent return by the governor to the house, and any action on it taken by the house must be regarded as nullities. When the bill became a law it was the duty of the committee on enrolled bills to deal with it as required by the provisions of sections 228 and 230, Shannon’s Code.
In support of the conclusions above reached it may be noted that section 18 of article 3 will not bear the construction that the adjournment of the house in which the bill originates, is sufficient to prevent the return of a bill with the objections of the governor.
A learned author on statutory construction has the following text on the same subject:
‘ ‘ Many constitutions provide that an act shall become a law without the governor’s signature if he retain it for a certain number of days after it is presented to him for approval (citing McNeil v. Commonwealth, 12 Bush. [Ky.], 27), unless the adjournment of the legislature shall prevent him from returning it within that time, and in that ease that it shall not become a law. The adjournment intended by this provision is a final adjournment, not adjournments from time to time.” .Lewis’ Sutherland, Statutory Construction (2d Ed.), vol. 1, sec. 62.
To sustain his text the author cites Miller v. Hurford, 11 Neb., 377, 9 N. W., 477, and State v. Michel, 52 La. Ann., 936, 27 South., 565, 49 L. R. A., 218, 78 Am. St. Rep., 364.
The doctrine announced by the text-books above cited seems to have had its origin, so far as the Amer-
Each of the foregoing cases supports the text above quoted from the text-books, and also of course supports the view which we take in the present case of the meaning of section 18 of article 3 of our constitution. In each of the cases above referred to,- the constitutional provision construed by the court was in substance the same as the provision construed by us in the present case. It is insisted for appellant, however, that there is a conflict of authority in the American courts. The conflict is very slight, if it may be said to exist. The first opposing case reh-ed on is People v. Hatch, 33 Ill., 135. The text of the Illinois Constitution construed by the court in that case was substantially the same as our own with one very material exception; for after the words, “unless the general assembly shall by their adjournment prevent its
“In which case the said bill shall be returned at the first day of the meeting of the general assembly, after the expiration of the said ten days.” Const. Ill. 1848, art. 4, see. 21.
This last-quoted clause is not in our constitution. If it were we could very well reach the same conclusion at which the Illinois court arrived (without, however, adopting all of its reasoning), for it is manifest that the last-quoted clause unerringly indicated the intent of the Illinois Constitution to be that the return of the bill should only be made to the house in open meeting. There was a clearly implied grant to the governor of such additional time in which to make the return as might elapse between the expiration of the ten days expressly granted and the first day of the meeting of the general assembly thereafter. The intent of the Illinois Constitution clearly was that a temporary adjournment of the house should relieve the governor of the duty of making the return during such adjournment; while under our constitution no such intent can be discerned, but a contrary one, as we think, clearly appears. Some of the reasoning of the Illinois court is in conflict with the views we entertain, and with those entertained by the other courts above cited. But it is manifest that the conclusion reached by the Illinois court must be rested upon the peculiar provision of its constitution above set out. The next case relied on by appellant is State v. South Norwalk, 77 Conn.,
Appellant insists, however, that sections 227 to 230 of Shannon’s Code, compiled from chapter 139 of the Acts of 1871 and already set out in this opinion,, amount to a construction of section 18 of article 3 of our constitution in conflict with the view which we have expressed. Appellant insists that:
“This legislation clearly contemplates that the five days mentioned in said section 18 were legislative days and not calendar days, and that the bill when vetoed should be returned to the house in which it originated, while the same was sitting, and not while it was in recess, or when the assembly had adjourned, even though temporarily.”
Now under our constitution it is provided that:
. “The senate and house of representatives, when assembled, shall each ... 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.”
In view'of the foregoing quotation from the constitution, article 2, section 11, we take it that the word “sitting,” in appellant’s insistence, means when the house is in legislative session, with a quorum present, because, if any other meaning should he given to the word “sitting,” it is apparent that less than a quorum of the membership of the house would have no power to reconsider a bill, if returned while less than a quorum was in the house, and an insistence that the governor might make a return to less than a quorum of the house where a bill originated is tantamount to an insistence that the governor might make a return to one member of the house. We are unable to see the force of the insistence that the legislation above referred to amounts to a practical construction of section 38, article 3, in conflict with the view which we have announced as the true construction of that section. The legislation referred to, as we think, merely outlines a course of conduct in no way in conflict with the plain terms of section 18, article 3. These sections were enacted to promote the orderly administration of the business of the legislative department of the government.
So far as we have judicial knowledge of any practical construction of section 18 of article 3 in this
‘ ‘ This is done by the authority of each house separately every day, and sometimes for a fortnight, or a month together, as at Christmas or Easter, or upon other particular occasions. But the adjournment of one house is not the adjournment of the 'other. It hath also been usual when his Majesty hath signified his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the King’s pleasure so signified, and to adjourn accordingly. Otherwise besides the indecorum of a refusal, a prorogation would assuredly follow which would often be very inconvenient to both public and' private business; for prorogation puts an end to the session, and then such bills as are only begun and not perfected must be -resumed de novo (if at all) in a subsequent session; whereas, after an adjournment, all things continue in the same State as at the time of the ad*654 journment made, and may be proceeded on without any fresh commencement.” Bla. Comm., yol. 1, sec. 186.
The distinction between adjournment and prorogation apparent in the above excerpt was made in the opinions of the justices in 3 Mass., 567.
In our opinion the decree of the chancellor was- correct, and the same is affirmed, at appellant’s cost.