8 Cal. 412 | Cal. | 1857
Lead Opinion
On the third day of April, 1856, a bill, which had duly passed both branches of the Legislature, was presented to the Governor.
The third day of April being Friday, there were two Sundays intervening between the third and fifteenth. .
The view we shall take of this case, renders it unnecessary to decide the point as to whether the parol testimony was properly admitted or not.
The seventh section of the fourth article of the Constitution provides that if any bill, presented to the Governor, “ shall not be returned within ten days affer it shall have been presented to him, (Sundays excepted,) the same shall be a law, in like manner as if he had signed it, unless the Legislature, by adjournment, prevent such return.”
The- decision of this Court, in the case of The People ex rel. H. P. Hepburn v. Whitman, October, 1856, was predicated upon the fact, that “ Sunday,” in the singular, was found in the printed copy of the Constitution. Upon an examination of the original copy of the Constitution, on file in the office of the Secretary of State, it was found that the printed copy was not correct. It should be “ Sundays,” and not “ Sunday.” The correction is made in the errata to. Wood’s Digest.
The two intervening Sundays not being counted, the only question is, whether the.return on the fifteenth, was within the ten days allowed by the Constitution; and the answer to this question will depend upon, whether the first and last days b"e both counted. If both are included, then the bill was not returned in due time, but if either be excluded, the bill did not become a law, by lapse of time.
The cases that have arisen in the Courts of England, and those of the several States, have given rise to much critical inquiry into the meaning of terms. Perhaps no class of questions has given rise to so much' verbal criticism, as cases regarding the mode of computing time. Many most refined distinctions have been raised, sustained, and then abandoned by the Courts; es-specially in England. In many cases the meaning seems- to have been entirely explained away.
The English authorities are very fully reviewed, in the opinion of Lord Mansfield, in the case of Pugh v. The Duke of Leeds. 2 Cow., 714. For a time, the distinction between the expressions “from the date,” and “from the day of the date,” was sustained; but finally it was determined that they meant the same
Another distinction long held, and still maintained, perhaps, by the weight of authority, was this: When the computation of time was to commence from an act done, then the count was to be inclusive of the day; but when it commenced from a day stated, the count shall be exclusive.
But like the distinction between “from the date,” and from the day of the date,” there would seem to be no substantial and good reason for it. It is a distinction without a difference. In one case, the day is expressly designated by the contract, or by the law j and in the other case, by a future event, the exact time of which could not be specified before it happened. But in both cases, the day from which the count must commence is fixed; in one case by prior statement, and in the other by. an after event, and in both cases,, with equal ultimate certainty. Then if we have the exact day ascertained, why should there be any difference in the two cases ? From the nature of the case, the exact day can be specified in advance in .the one instance, and cannot be thus stated in advance in the other; yet when the act is done, the exact day is equally ascertained. Then why’should there be any difference in the mode of computation ? These different modes of specifying the day are adopted from necessity, but both are ultimately equally certain, and the mode of computing the time should be the same in both cases. So, the ' distinction between “from the date,” and “within” so many days, months, or years from the date, or from the act done, is not well founded. The computation should not be at all affected by the use of these different forms of expression. The construction should be such in each case as to carry out the intention of the parties, and give effect to their contracts. . " '
In the case of Lester v. Garland, 15 Vesey, Jr., 248, the time was to be computed from the testator’s death; and it was held, that the six months were exclusive of the day of the death. Sir William Grant, in his opinion, refers .to several authorities which exclude the day of the act, and says: “Here the reason of the thing requires the exclusion of the day from the'period of six months, given to Mrs. Painter, to deliberate upon the choice she would make.”
The day of the date is now excluded in the computation of time on notes and bills of exchange. Story on Notes, § 211—Bills, § 329.
The regulations adopted by the English Courts, Hil. J., 2 W.,
It would require more time than would be consistent with the other business of this Court, to examine in extenso all the authorities referred to by the learned counsel in this case. But the remarks of the learned commentator to Ves. Jr., Reports, 15; V. Jr., 248, that “ of late the general rule of construction seems to have been to exclude the first day,” would seem to be substantially true. It would be impracticable to lay down any rule in advance, applicable to every case that may arise. When the entire validity of an/instrument or a title must fail, and the true intention of the^parties be defeated unless the first day be included, then it should be done.
But when a certain time for deliberation is given, the exclusive rule should bo adopted. . It was doubtless the intention of the framers of the Constitution, not only to fix a definite time within which the Governor should return the bill, but also to allow him ten full days for deliberation. If this were not so, Sundays would not have been excluded. And as a fraction of a day cannot be counted, by excluding the first and counting the last day, the full time will be in general allowed the Executive. This rule substantially allows the Governor the same time as if it were computed from the exact moment the bill was presented, to the exact time when returned. It is a rule more in consonance with the reason of the case, and the fair intent of the Constitution. It also accords with the rule in civil practice in our Courts. Under all the circumstances, we think it the most satisfactory.
Judgment affirmed.
Concurrence Opinion
I concur in the foregoing opinion. From.a careful examination of all the authorities, both English and American, to which we have access, I am satisfied that there is no uniform rule for the computation of time, whether we reckon from an event or a date; the Courts generally including, or excluding, the first day, as it was necessary to give effect to contracts, and carry out the intention of the parties.. Thus, in the case of Pugh v. The Duke of Leeds, (2 Cowper, 714,) where, under a power to make a lease iñ possession, and not in reversion, a lease was executed for twenty years “ from the day of the date,” the Court held that the day of its execution was included. So, in the Countess of Portland’s case, where a lease for crown-land had been taken for a term of years “ from the day of the date,” the statute forbidding the creation of any estate in such lands to commence in futoro. In these cases, such a construction was necessary to uphold the contracts.
Per contra, in the case in 15 Vesey, Jr., where a widow was required by will to give bond, within six months after the testator’s death, that she would not contract a second marriage, and
The masterly review of the English cases by Lord Mansfield, in Pugh v. The Duke of Leeds, shows conclusively their entire want of uniformity.
The American authorities are equally conflicting. The decisions of Hew York, Massachusetts, South Carolina, Texas and Pennsylvania, are opposed to those of Ohio, Indiana, Kentucky, Iowa, Hew Hampshire and Delaware. The Constitution intends that" no bill shall become a law without the concurrence of the Governor and a majority of each house of the Legislature, or two-thirds of each house. The assent of the Executive is presumed after a silence of ten days; but, if within this time, the bill is returned without approval, it is defeated, unless passed by a vote of two-thirds of each house.
In this case the'bill was, within ten days, exclusive of the day of its presentation to the Governor, returned to the house in which it originated, and the Executive veto was concurred in; so, it clearly appears that it was not the will of the Governor, or of a constitutional majority of the Legislature, that it should become a law.
Under these circumstances, if the current of dedisions was uniform and consistent, we might feel constrained, by the weight of authority, to adhere to the rule established ; but the decisions being, as we have shown, in conflict, I think we should follow the example of the English Courts, and construe the clause so as to carry out, and give effect to the intention of the framers of the Constitution.
The judgment should be affirmed.
