69 W. Va. 481 | W. Va. | 1911
Lead Opinion
Until the enactment of chapter 85 of the Acts of the Legislature of 1911, the council of the town of Point Pleasant had sole and exclusive power to grant license to sell spirituous liquors, without regard to the county court of Mason county; but that act took away this council power by the provision that, “No license to sell at wholesale or retail spirituous liquors, wine, porter, ale, beer or drinks of like nature shall be granted
In the argument before this Court of this much contested case two grounds were urged for the contention that the Act of 1911 is null and void, leaving still in force the former statute giving the council sole power to grant such license. One ground is, that the bill was not read in the Senate on three different days, as the Constitution requires; and the second ground is, that the bill never finally passed the Senate so as to become a law.
As to the claim that the bill was not read in the Senate on three different days, the facts are, that a bill called Senate Bill Ho. 99 was introduced into the Senate, and an exactly similar bill called House Bill Ho. 161 was introduced into the House of Delegates. That House Bill 161 was regularly read and passed by the House, and reported to the Senate as passed by the House, is not questioned. Senate Bill 99 was read twice in the Senate. On its second reading the Senate substituted the house bill for the senate bill, and under the name of House Bill Ho. 161 it was ordered to be read a third time, and on February 18th was read a third time and passed with its title. As stated the titles of the two bills were the same, the bodies the same, literally. Eor the purpose of the requirements that a bill shall be read three times, -we may say that these bills are one, because they have the same title and the same enacting language. The purpose of this provision of the Constitution is to inform legislators and the people of legislation proposed by a bill, and to prevent hasty legislation. The two readings of the Senate Bill and the third reading of the substituted House Bill did this, just as effectually as if the house bill had not been substituted for the senate bill, and the senate bill had been retained and read a third time and passed. Shall we give
Will it be suggested that this was another bill, a substitute, not Senate Bill 99, and that this substitute should have been read three times ? I ivould answer that we can hardly call it a substitute because it is identical in matter with Senate Bill 99. But suppose even that the bills were not so identical; still the substitute bill, if so germane to the original bill as to be a proper substitute, would not have to go back and be re.ad three times. A substitute is an amendment. “When a bill has been read and referred to a committee who have reported a substitute, having the same general principles, it is not necessary to the valid enactment of the substitute that it should be considered an original bill and read three times on the three different days.” 26 Am. & Eng. Ency. L. 540. When a bill is amended it does not call for re-reading. People v. Thompson, 7 Pac. 142; 36 Cyc. 952; State v. Dillon, 42 Fla. 96; Cleveland v. Anderson, 66 Neb. 261. Capito v. Topping, 65 W. Va. 588, written by Judge Poffenbarger, is pointed authority for this. A bill having same title as- act No. 40 of 1894 was introduced in the Senate as S. B. No. 23, read by its title, placed on the calendar for second reading, subsequently taken up upon second reading, read by title, and referred to a committee.
The committee reported its action on Senate Bill No. 23, giving the exact title of the same. The committee reported the bill favorably by substitute. The bill was read by its title. Substitute adopted in lieu of original bill, and became S. B. No. 90. Bill as reported read by title. Subsequently S. B. No. 90 reported by the committee was put on its third reading, and read in full, then passed. Held, that the contention that S. B. No. 90 should have been considered an original bill, and read in the senate three times on different days, once in full, was not well founded. Board v. Fowler, 50 La. Ann. 1358. Take the case of Miller and Gibson v. State, 3 Ohio St. 475. “A bill after being read twice in the senate was committed to a select committee, who reported it back with an amendment, to wit: ‘Strike out all after the enacting clause and insert a new bill.’ The bill as amended passed the senate and house and became a law. The claim was made that the ‘new bill’
“Held: The act was constitutionally passed and is a valid law. The committee did not report a new bill. They had authority to make such changes as would reconcile differences between the two houses. It was not necessary that this bill be passed upon three readings after the committee reported.”
I believe it is not, and cannot be, claimed that the bill after passage by the Senate had to go back for concurrence of the House in the substitute, for the reason that the substituted house bill was not variant from, but identical in title and enacting matter with House Bill 161. “An immaterial amendment need not in any way affect the substance. Where a reference to ‘Thompson & Steger’s Code’ was struck out, and the devised Code of Tennessee’ inserted in its place, both being the same book, it was held that there was not any substance and amendment requiring concurrence.” Note 30, 36 Cyc. 956, citing Gaines v. Harrigan, 4 Lea (Tenn.) 608. In our case there was no difference between the two bills save in name and number. Name and number are no part of the real bill, merely designating for convenience, and cease on passage, and do not appear in the published act. Judge PoeeeNBARGBR lays down the rule that no bill can become a law in less than five days. 36 Cyc. 950, says: “A substantial compliance with a constitutional requirement as to the reading of bills is sufficient * * * The requirement that bills be read on different days in each house will not prevent the reading of a bill in one house on the day that it was passed by the other.” A note there found says that “When duplicate bills are introduced in both houses the substitution and final passage of the house bill for the senate bill on its order of third reading does not render the substitute bill obnoxious to the constitutional requisite that bills shall be passed on three different days in the Senate”, citing Archibald v. Clark, 112 Tenn. 522, 82 S. W. 310. It is
Judge PoeeehbAUGER seems to say that our decision would allow a house bill to be read three days in the House, then go to the Senate, and there a substitute be adopted, and it then passed without three daily readings. By no means do we say so. In our case the duplicate bill was read three times in each house. The very same bill was so read. The bill for this purpose is not the mere piece of paper, but it is its contents that must be read. The contents are what is meant by the word iCbilP in this, provision of the Constitution. The duplicate was, under facts above stated, read three times on different days in each house. That is the case which we decide. Thus we come to the conclusion that the three readings required by the Constitution were had.
Next, as to the second ground given for the invalidity of the act, that is, the claim that the bill never became a law for want of final passage by the Senate. As stated above the Senate passed the bill February 18, and ordered its passage by the Senate to be reported to the House, and it was so reported. On February 20 the Senate adopted a motion to reconsider the votes by which it had ordered House Bill 161 to be read a third time and passed. The Senate passed an order requesting the House to return the bill to the Senate; but the House in response to this request, on February 21, refused to return the
I have cited this ease as authority for the proposition that to render reconsideration effective the bill must be yet in the possession of the body, the court saying: “When does the power of control over a bill passed by both houses close and determine ? There must be a time in parliamentary proceedings when the controlling power of the legislative body must come to an end. If the general assembly had the power to recall the bill it must have been for the purpose of reconsideration because no motion to reconsider it is in order unless the paper is before the body in which the motion to reconsider is made. (Jefferson’s-Manual, 93)”. In Allegheny County v. Warfield, 100 Md. 516, 108 Am. St. R. 446, conceding power of Governor to erase his approval, yet it is made dependent on the fact that the bill is yet in his custody. Jefferson’s Manual of Parliamentary Law says, “After a bill, resolution, message, report, amendment or
For the proposition that to justify reconsideration by a legislative body it must still have possession of the bill, a brief cites Croker’s Procedure 80, 182; Hunneman v. Grafton, 10 Metc. (Mass.) 454; Reed v. Action, 117 Mass. 348; Bigelow v. Hillman, 37 Me. 52; Estey v. Star, 56 Vt. 690; Marsh v. Scitnate, 153 Mass. 34; Brown v. Winterport, 79 Me. 305.
Great force is attributed in behalf of Smith to the case of State v. Bank, 79 Conn. 141, 64 Atl. 5. The case is widely different from our case, in that respect on which our decision as to this point rests, namely, the continued possession and control of the bill. A bill passed both houses, but a motion to reconsider was made, pending and not disposed of, and by mistake, without authority it was delivered by the clerk to the Secretary of State. The court as its reason said in words that “While the bill was in the possession of the house and on the desk of the Speaker, the house had entertained a motion to reconsider.” In our case the bill had left the Senate by its order, the Senate thus declaring that it had finished consideration of it.
Very clear it is that when a bill has passed both branches of the Legislature, and been approved by the Governor and filed with the Secretary of State, the bill cannot be later reconsidered or recalled by either or both branches, simply because the Constitution says that when so approved it is law. And further after a bill has passed both branches and gone to the Governor for his action it can not be reconsidered or recalled by the Legislature, for the reason that it has ended its function and lost control and possession, the legislative department has acted on it, and it has gone to another department of the government, the executive, for its action, Wolfe v. McCaull, 76 Va. 876; 26 Am. & Eng. Ency. L. 548. The New York
Precedents or instances there are of the federal Senate and House where one body has, on request by another, returned bills or resolutions, just as there have been instances where governors have returned bills presented to them, and the power silently conceded, as stated in 26 Am. & Eng. Ency. L. 548; but such concession would not make law. We have not before us what such bodies may do. We have the dry question of law. whether after the Senate had done with the bill, its vote to reconsider will nullify the passage of the bill, the House not consenting and refusing to return the bill, the Senate never repossessing itself of the bill. We thus do not have the question whether the Senate could have affected the bill, had the House returned it. It had passed both houses. Could one alone nullify its past act of passage demanded by the Constitution, which passed act had taken legal effect by force of the Constitution? The well considered case of People v. Devlin, 88 Am. Dec. 377, and others cited in 26 Am. & Eng. Ency. L. 148, say one branch cannot recall from the governor. Why can one branch, against the will of the other, recall from that other? if it does, it has no effect. We are not dealing with the question of courtesy between the houses or what the House should have done. We know what it did do. It refused return of the bill.
As to “recall” from the Governor. The House never joined in it, nor authorized the Speaker to do so. Where is the Speaker’s authority to do so? The Senate alone made a recall on 24th February. The bill had then been enrolled, signed by the Speaker and President of the Senate, approved by the Governor, filed with the Secretary of State. After all this, after all these proceedings, this Court is asked .to ignore it all, and overthrow the act. We think this Court would be going far, straining its legitimate powers, to do so.
Holding the act valid we refuse the mandamus.
Above I have given the reasons moving the Court in its de-
If there had been no vote of the Senate passing the bill the case would be different. While some cases say that a court cannot inquire whether a bill was passed by both legislative houses when approved by the Governor, the preponderance of law' is that the judiciary may look to the journals to see whether the constitution has been in this respect complied with; but that is not our case; for the journal of the Senate shows compliance with this requirement, everything regular, the only question being as to the effect of the vote to reconsider. We are asked to enter into details of procedure in the Legislature, to inquire into regularity or irregularity, and pronounce that the vote
After a full discussion of a petition for rehearing this Court refused it. I make this note to add some authority which I have met with today. As to the position taken in the above opinion that the Senate having returned the bill to the House as passed it had lost possession of the bill and could not reconsider. Cushing on the Law and Practice of Legislative Assemblies, section 1274, says that “though a motion for reconsideration may be made and discussed in the absence of a paper to which it relates; yet if decided in the affirmative, it will be wholly ineffectual and inoperative until the paper is in possession of the house. The first step, therefore after vote to reconsider is to send to the other branch for the paper in reference to which the vote to reconsider passes, or otherwise to bring it before the house.” Por myself I do not see why the paper is not necessary on the motion to reconsider. Why? Because the members want to see it, so as to vote intelligently on that motion. Why necessary to have the bill present when reconsideration takes place? In order that the members may read it before voting. Precedents in Congress show that such was the understanding. The House requested the Senate to return a bill, “There being a motion pending to reconsider the vote by which the House passed the same.” The senate complied with the request. In the senate the question was whether a motion to reconsider was in order in as much as the resolution announcing the decision of the senate on the nomination of Isaac Hill had been communicated to the president, and it was unanimously determined that the motion was not in order. The Senate recalled a bill from the House before reconsidering it. Decisions on points of order in the H. S. Senate by Gilfrey 161, 411, 493.
Writ denied.
Dissenting Opinion
(dissenting):
Deeming this decision and the opinion upon which it stands palpably unsound, and wholly unsustained by any real authority, I dissent, and would grant peremptory writs of mandamus in all of the nine cases, commanding the clerk of the county court to issue the certificates of license.
The question for this Court is not one of license or no license. It is merely one of constitutional law, and nothing here involved calls for deviation from the plain letter of the constitution or the settled construction thereof. The doctrine of the opinion has never been adopted by the legislature of this state or any other, so far as I am able to see. On the question of reconsideration the two houses utterly disagreed, the senate demanding the right always previously exercised by each house, with the acquiescence of the other, and the house denying it. That the action of the senate, in the case of the bill here involved, was in accordance with settled practice is not denied by anybody. It cannot bo. That practice makes legislative law, which this Court has no right to ignore, nor to allow one of the two bodies to abolish without the concurrence of the other. Moreover, that practice and law seem to be uniform in all American legislative bodies, including the Congress of the Dnited States. Those who will take the time to read this necessarily long opinion will find that nothing stands to the contrary of this conclusion, not even dicta, much less decision or reputable text.
I make no apology for the length of this opinion. Proper settlement, in few words, of questions of the number, magnitude and intricacy of those involved here, is impossible, and an attempt to do so amounts to a dismissal without adequate consideration or effort.
In discussing the first question, whether the bill on which, the case turns, published as an act of the legislature, had the three constitutional readings in the senate, 'we must not lose sight of the purpose of the clauses of the constitution, prescribing an exclusive mode of passing laws, nor the elements of that
The reason for the other clause of the constitution, prescribing the mode of passage through each house is likewise dis-eernable in the result of its operation. The two houses are separate but co-ordinate bodies, as I have stated. The Constitutional plan is to pass bills through these two houses successively. They do not act at the same time upon the same matter, and cannot in the nature of things. The jurisdiction of one excludes that of the other, for the time being, just as occupancy of space by one body excludes therefrom all others. The constitution, therefore, plainly requires successive passage of bills through them. A bill originating in the house must have its three days there and then its three days in the senate. This aggregate of six days for passage through the two houses may be cut to five by giving the house bill its first reading in the senate on the day of its final passage by the house; but five days necessarily constitute the minimum period. This period of time and this order of action by the two houses are contemplated and imperatively required, unless the constitutional rule is set aside by a vote of four-fifths of the members present in one or the other of the two houses, and, when it is so set aside, the fact must appear’ by a yea and nay vote entered upon the journal. One of two' things must appear from the journals in the ease of every statute. Five days must have been consumed in consideration thereof on the floors of the two houses, acting successively, or the requirement must have been dispensed with in a prescribed manner. Thus, in all ordinary cases, five days at least are required for the passage of a bill through both houses and as many more as result from omission to bring it up in either house for consideration by reason of neglect, choice or impossibility due to the pendency of other business. The obvious purpose of this is to compel devotion of a prescribed period of time and order of action to every bill that becomes a law, as a means of preventing hasty and inconsiderate action in the high and import
The method of the alleged passage of House Bill 161, if sustained, reduces the minimum period for passage of a bill by both houses from five to three days, without a suspension of the constitutional rule in the constitutional way by either house. It may originate in one, have its three readings there on separate days and, on the day of its passage there, be transmitted to the other, there substituted for a similar or like bill, on second reading, and passed. This amounts to a plain, palpable and radical violation of the constitutional plan. The public is thus denied two-fifths of the time allowed by the constitution for aiding or resisting the enactment of laws. As I have said, somebody’s interests are always affected in some way by every ’piece of proposed legislation. Those who are so affected have a perfect right to resist it by lawful methods. The constitution guarantees to citizens the right of petition, .and the clause thereof now under consideration was inserted to protect that right, as well as to prevent hasty action by either of the two houses of the legislature. The new method breaks up and confuses both proponents and opponents in and out of theNlegislature, dividing their time, attention and efforts and cutting off two-fifths of the period of delay reserved by the constitution for deliberation. To say this works no practical injury is not a logical or just answer to this obviously material abridgment or denial of a constitutional right, nor a reasonable exoneration from the charge of judicial amendment of the constitution. The people made the constitution and reserved to themselves the sole power of
That House Bill Ho. 161 and Senate Bill Ho. 99 were identical in language and provision is a matter of no significance or import whatever. They were nevertheless separate, distinct and strange bills. One was a house bill and the other a senate bill. Hntil the date of the transmission of the house bill to the senate, these two bills could by no possibility have been in the same house, notwithstanding the identity of their subject matter and terms They were as purely distinct as two bills in equity, identical in subject matter and terms filed in courts of different states. Identity of bills does not, cannot result from identity of matter. That is a legal impossibility. The name and identity of a bill are determined by reference to the house in which it originates and in no otherway. The house bill could not constitutionally pass the senate otherwise than as a house bill. It was passed, if at all, under that name, number and descrip
The possible suggestion of lack of express terms in the constitution, inhibiting circumvention of its plain purpose, as opposing this view, is met by the stubborn fact that it fixes the period of deliberation, manifesting indubitable intent and purpose. What is within the intent of a statute or contract is a part of it and cannot be judicially eliminated. The same rule applies in the interpretation of constitutions. That which is clearly within the intent of the people in adopting a constitution can be neither legislated nor adjudicated out of it. Express terms are not necessary. “It is not always necessary, in order to render a statute invalid, that it should contravene some express provision of the constitution; if the act is inhibited by the general scope and purpose of the instrument it is as much invalid as though prohibited by the express letter of some of its provisions.” 8 Cyc. 729. The soundness of this proposition is apparent, for the reason that the rule of liberal construction applies to constitutions. The rule of strict construction is applied only to penal statutes and contracts. When the purpose of a constitutional provision, not penal in character, is ascertained, it must be enforced, just as in the case of statutes and contracts. A legislature can no more defeat a constitutional purpose by shifts, devices and subterfuges than it can nullify plain words by such makeshifts. “The established rules of construction applicable to-statutes also apply to the construction of constitutions.” 8 Cyc. 729. The majority
An exhaustive search has disclosed but a single precedent for the position taken by my brethren on this branch of the case, and that is a poorly considered decision in Archibald v. Clark, 112 Tenn. 532. The opinion in that case, on a question of such importance, consists of a few printed lines, in which no reference whatever is made to the purpose of the constitutional clause, the wide scope of its operation or its wholesome effect as a safeguard against reckless legislation. The court contents itself with the simple observation that the legislative practice in that state justifies the construction it gives that clause. In so doing,- it wholly ignores the legal principle inhibiting variation of plain terms in any instrument, even a simple contract, by conduct or contemporaneous or practical construction, and also the almost universally accepted doctrine that constitutional provisions are mandatory, and the obvious necessity of so regarding them, since to hold them merely directory is to authorize the legislature to ignore them at will. This precedent is not binding authority upon this Court nor in harmony with the principles applied here and throughout the country generally in the interpretation of constitutions. The constitutional clause in question is mandatory. Price v. Moundsville, 43 W. Va. 523; 26 A. & E. Enc. L. 539. “The great majority of all constitutional
As already stated, the lone Tennessee case professedly stands
The majority opinion raises a vital question as to the character of the action of the senate in substituting the house bill without pausing to settle it by the application of any legal principle, namely, whether, by that action, the house bill became an amendment to the senate bill or a new or original bill in the senate. Identity of terms in the body of the two bills is suggested as a ground of incompatibility with the theory of substitution. The opinion says: “We can hardly call it a substitute because it is identical in matter with Senate Bill 99.” Then an hypothesis is stated and an assumption made. Supposing it to be a substitute, the opinion says “A substitute is an amendment”, and then follows the legal proposition that a bill need not go back for repeated readings after an amendment. If identity of matter precludes the legal view of substitution, it certainly precludes the legal theory of amendment. ’ An amendment necessarily implies a change or alteration as to matter. Manifestly identity of matter is more inconsistent with the idea of amendment than that of substitution. Substitution does not necessarily involve an alteration as to matter, but amendment does. For mere convenience of expression, the action taken by the senate may be, and such action often is called either or both, but, in substance and effect, it was neither. In law, fact and logic, the senate laid aside its own bill and proceeded to consider the. house bill. If there was an amendment or substitution, it was not one, made in the form or under the conditions, at-tendent upon those considered in the opinions cited by Judge
Whether such of these decisions as dispose of substitute bills are sound' may be very well doubted. A substitute is not a a simple or ordinary amendment. What we have here is in reality neither a substitute nor an amendment, I repeat, but, if it were, it -would be more than a mere amendment. In congressional procedure it is called an “amendment in the nature of a substitute”, and treated as an original bill. “Under the practice of the House for many years, where a substitute is reported by' a committee for a bill the substitute alone is considered, the original bill being without objection laid on the table. If there be objection, then the original bill is sent to the proper calendar, and the proposed substitute treated, as an ‘amendment in the nature of a substitute.’ The substitute is read a first and second time, is numbered, and becomes to all intents and purposes an original bill. This has been found much more convenient than the old practice when bills were not printed as now. Formerly it was the practice to treat a substitute as an ‘amendment in the nature of a substitute’, viz: by striking out all after the enacting clause and inserting the matter proposed or recommended by the committee in lieu of that referred.” Con. Man. Dig. Rules & Pr., 2nd Session 50th Cong., pp. 491-2. The details of the old practice are not so fully indictated as those of the new, but as the new is simpler and involves additional readings as in the case of an original bill, the old must have involved that and something more. As general parliamentary law requires a substitute to be treated as an original bill, we may well say the framers of the state constitution contemplated such treatment. In using the word “bill” they meant a bill in the parliamentary sense, and, as a substitute, wholly wiping out original matter, not merely altering it, is in parliamentary law the equivalent of an original bill, it cannot reasonably be assumed they did not 'intend a substitute to be so treated. Parliamentary law as defined and administered in the national Congress is generally observed and applied in the state legislatures. Our own
While this conclusion as to the character of a substitute bill is, in my opinion, sound, it is not essential to the correctness of my view as to constitutional procedure on a bill passed by one house and substituted for another bill in the other house, but it harmonizes with the manifest intent and purpose of the constitutional provision and aids the effort to reach the true interpretation thereof. It expresses its reason, intent and spirit, constituting its substance. A bill passed by one house and substituted in the other is more than an amendment; more than a substitute, whatever the correct procedure as to amended and substituted bills may be. If an amendment or a substitute or both, it is in addition thereto a bill of the other house, falling under the constitutional rule requiring successive passage by the substituting house in accordance with a constitutional formula, to give the' constitutional period of deliberation. Whatever we may say of the decisions relied upon in the majority opinion, not one of them shortens that period or violates the. constitutional reservation of time: Therefore, conceding them to be sound, for the sake of argument, they constitute no basis for the position this Court has taken. This very core or heart of the question is not noticed by the majority opinion.
This decision permits the legislature to clip off forty per cent, of the constitutional period of legislative deliberation, not for anti-saloon legislation only, but for all sorts of legislation, affecting life, liberty, industry, society, property, taxation, religion and every other subject within the pale of legislative authority. This clause cannot be construed in one way for one class of legislative bills or acts and in a different way for other classes. Its interpretation for one is its interpretation for all. The people, in adopting the constitution, put in this clause as a safeguard against hasty and inconsiderate legislation of all kinds,
For these reasons, I am firmly of the opinion that the bill never constitutionally passed the senate nor became a law, nor reached a stage authorizing enrollment, or signature by the presiding officers of the two houses or the governor,'or publication as an act of the legislature.
But, for the purpose of argument, conceding it to have had three readings in the senate, as well as in the house, reconsideration by the senate of the vote by which it had passed, within the time allowed therefor by Senate Rule 52, rendered it a bill unpassed by the senate, and as ineffectual as if it never had been passed. The contrary of this conclusion is asserted chiefly on the ground or claim that the senate had lost jurisdiction to reconsider by communicating its passage to the house and permitting it to be enrolled and signed by the speaker and the president of the senate. The contention is based upon what I am constrained to say, with due deference, is a misapprehension of the meaning of observations in Jefferson’s Manual and certain decisions and some dicta, but no actual decision of any court. Jefferson’s Manual was prepared by Thomas Jefferson between the year 1796, when he was elected Vice-President and was soon to enter upon his duties as presiding officer of the United States Senate, and the expiration of his term, March 4, 1801. Those were embryotic days of American parliamentary law. It had not been settled or perfected in any sense. The Manual was a mere text book, founded largely upon English parliamentary law, in which reconsideration was unknown, as the Manual itself says. Section 43. It is not to be supposed that everything he then wrote on the subject of reconsideration has been accepted, and, in fact, it has not. To a limited extent only, his manual was adopted by the House of Representatives September 15, 1837, and not earlier. Its principles and rules
It might, in violation of duty, refuse to do so, but could not thereby tie the hands of the Senate or destroy its constitutional powers. Such refusal could only prevent further action on the bill by the Senate. The Senate rule, authorized by the constitution, reserved power in the senate to undo its vote of passage, no matter where the bill was, even though it were in the hands of the governor. So says the Congress of the ’United States. The Senate, therefore, had passed the bill, subject to its reserved right to rescind its action, and did rescind it. If the house did not choose to return it and allow its friends in the Senate to attempt to pass it again, so much the worse fox the bill and its friends. It could not arbitrarily and of its own strength make it law by its mere claim or declaration of opinion. I
The interpretation, of the constitutional clause, commanding “Bach house” to “determine the rules of its proceedings,” and the rules adopted, pursuant to that mandate, must be evolved from consideration of the constitutional purpose, and the reasonableness and necessity of the rules, if any, as a means of securing mature and careful consideration of, and action upon, proposed laws, correction of errors and inadvertencies and consequent protection of public and private interests and rights. The constitution by this provision as to rules and others makes each house sovereign in its own sphere. Ho power on earth can compel it to yield its assent to any proposed law. It may pass or reject any bill at its own pleasure. Ho provision says its
And it does this unnecessarily. The retention of the bill' by the house can be sustained without denial or abridgment of the senate’s powers, as I have shown. It defeated further consideration of the bill, without annulling the action of the senate. Is not a vote passing a bill a proceeding of the senate ? Is not the rule for reconsideration a rule for, or relating to votes, votes being proceedings ? Are not the terms of the rule broad enough to include all of the senate’s votes? Does not the constitution say “Each house shall determine the rules of its pro
Is there any reason or necessity for .a rule, reserving such power of review and correction ? Denial thereof is the assertion of the infallibility of men, their inability to err in judgment, immunity from involuntary action as the result of deception and fraud, and impossibility of oversight of clerical errors. It is to assert of legislators a higher regree of sagacity, mentality, alacrity, industry and ability of every sort, than the members of this or any other court of last resort in this country is deemed to possess. All of them have acknowledged power to reserve
The theory of the opinion, though not stated, seems to be that a branch of the legislature cannot or should not, for some reason, reserve this power of correction by a general rule, holding all final votes for a very limited time, two days in this instance, but must decide, once for all, instanter and at its peril, on the passage of a bill, whether it desires, or probably will desire, to reconsider the vote, and pass a special resolution or adopt a special motion, forbidding the ministerial officers from taking the bill out of the house. This is simply an assumption of -power on the part of the judiciary to malee rules for the legislature, or tell that body how it must malee them, which amounts to the same thing, in the face of a constitutional provision saying “Each house shall determine the rules of its proceedings.” In conferring that jurisdiction upon the legislative houses, the con
Carrying the inquiry as to reason and necessity further, I note the radical difference between legislative action and other kinds. Entry into a contract is wholly voluntary and free from compulsion in any form. So is the action of every court. The governor, in approving or disapproving a bill, has the matter wholly in his own hands. In none of these instances are there rules by which the actor can be hurried or forced into a hasty decision. Nobody can act for him in any manner, form or degree. He takes his own time and registers his own deliberate conclusion. He is not surrounded on every hand by other pending measures, backed by energy, industry and skill, eager to push them forward at ever opportunity. The situation of the legislator is different. His time is not his own. It is everybody’s. He must watch a hundred things at one time. He is surrounded with dangers on every hand and burdened with things innumerable to be done within very little time. He is in constant Avar, and as often on thé defensive as the offensive. Tinder the quorum and majority rules, his measures may be defeated or
Failure of analogy, so much relied upon, to sustain the position of the majority -here is almost as obvious as that of reason and authority. Final judgment and adjournment of the court ends the jurisdiction. Presentation of a passed bill to the governor may be the beginning of another, like the granting of an appeal. But the situation of this bill at the time of the reconsideration was by no means like that of the judgment or the presented bill. Transmission: out of the house is not a final act, and does not convert a mere legislative proposition into law. The jurisdiction of the legislature has not ceased. The session still continues, like a term of court, until adjournment. Legislative jurisdiction continues until that of the governor begins. Could he force either house, or either house force the other, to present a bill to him, though it had passed both ? By what process? Legislative jurisdiction not having ended, which house had it? Necessarily both, for the.legislature is composed of both. After passage the bill was the bill of both. The passed bill in the hands of that committee, an agency of the senate as much as that of the house, was in the control of the senate as much as of the house. Alleged transmission back to the house was no transmission. It amounted only to notification of senate action. Before that bill got out of the hands of the joint committee into those of the governor, a motion to
Having thus fully discussed this subdivision of this branch of the case, from the practical, philosophical and legal points of view, and stated what impresses me as a necessary and inevitable conclusion, arising therefrom, I now undertake to make good the charge of virtual nullity and inapplicability of the authorities, relied upon in the majority opinion. This language of the opinion, professing to be a quotation from Jefferson's Manual: “After a bill, resolution, message, report, amendment, or motion upon which a vote was taken shall have gone out of the possession of the Senate,” is no part of that treatise. It is in a book containing the Manual, but it is no part of the Manual. That volume contains the Constitution of the United States,
The court, in People v. Hatch, was speaking of general parliamentary law and practice, not altered or affected by a rule, such as the senate here acted under. The quotation itself shows this by the use of the phrase “unless they have some special rule restraining the right to reconsider.” Can the authority of either of our houses to have a special rule, enlarging the ordinary parliamentary law, under the constitutional provision so often referred to in this opinion, be denied? Would not an enlarging special ride alter the general law as surely as a restraining one? Where are the terms forbidding enlargement? I challenge reference to them. This distinction is recognized in Wolfe v. McCaull. There the rules are stated as well as the general law and the distinction noted. Had Judge BRANNON gone one sentence further with his quotation from the opinion in that case, he would have had part of it in his opinion by adoption. Immediately after his quotation this is found. “But in Virginia the rules of both houses of the general assembly fix the time and mode by which a bill passed may be reconsidered.” Note the disjunctive “but,” marking the distinction. The opinion then proceeds as follows: “By the constitution each house is allowed to adopt its own rules. House rule 70 provides that ‘when a question has been decided, it may be reconsidered on the motion of any member who voted with the prevailing side, provided the motion be made on the same day or the next two days of actual session.’ Rule 61 of the senate is to the same effect. (See also Jefferson’s Manual page 92, which is adopted by both houses as their guide). According to these rules, and the general practice, a motion to reconsiderd the same vote cannot be
Hules adopted under that provision are laws of which everybody having relations with either the senate or the house, including the executive and the other house, must take notice. They must also respect them, just as they do the powers and rights of other tribunals and officers. While these parliamentary laws, are limited as to their sphere, they are sovereign and irreviewable within it. Otherwise a legislative body could not perform its constitutional functions. This would be impossible if one house could ignore the rules or laws of the other and the governor those ÓÍ both. For the same reason-, each house is the sole interpreter of its own rules. They must be respected as it construes, applies and enforces them, no matter whether its construction is correct or not. On this subject we have direct authority in State v. Savings Bank, 79 Conn. 141, in which the court both states and applies this proposition in the following clear cut, convincing language: “Courts are not warranted in setting aside, as void, action of a legislative body in respect to a matter clearly within its power, merely. because that body may have violated or departed from its own rules of procedure. Sucli rules are the servants of the legislative body and are subject to its own independent authority.” Syl. “There being no claim of a violation of any constitutional restriction, we cannot pass upon the regularity of these proceedings. The power of the House, directly after the passage of a bill, and on the day of its passage, to suspend the operation of that vote, to reconsider the vote, and to take different action, cannot be questioned.
Another suggestion of possible ground for the position taken1 by my associates is that, assuming the motion to have been made and acted upon within the time and under the circumstances, allowing it, the passage of the bill was not annulled or rescinded by the adoption thereof. Ho authority is offered for this. On the question of the effect of the adoption of a motion to reconsider a vote passing a bill, Ave have direct authority in
Finally, we have the conclusion of the majority opinion in these words: “Without asserting that the failure to vote a rejection of the bill left the original vote of passage still good, we do say that a court after such procedure cannot hold the act null and void.” The “procedure” consists of the facts stated at the beginning of the opinion. For this conclusion no authority at all is given, and no legal principle is invoked, unless it be the one embraced in the sentence immediately following it which says “And further, if this is doubtful, then the rule that before a court can hold an act invalid the question must be clear, is alone enough to deny the mandamus." The next sentence admits that “If there had been no vote of the senate passing the bill the ease would be different.” Now, according to the only decision, directly in point on this question, the dicta of others and legislative practice in this state and the national congress, this bill is in the same state and condition as if it never had passed the senate. In State v. Savings Bank, 79 Conn. 141, the court actually decided, as the vital and basic question in the case, that “A bill retained by one house of the General Assembly to await its decision upon a motion to reconsider its action in passing it, is not then in a situation to be ‘presented’ to the Governor for his approval, nor can it be said to have ‘passed both houses’ within the meaning of that expression in Article
Cushing’s Law & Practice of Legislative bodies, at section 1274, says the motion may be made, discussed and decided in the affirmative, without the custody of the bill. We quote: “The first step, therefore, after a vote to reconsider is to send to the other branch or to the executive, for the paper in reference to which the vote to reconsider passes, or otherwise to bring it before the house. Possession of the paper may also
Gilfry’s Precedents, Decisions on Points of Order in the United States Senate, page 411, mentions a case of refusal of the Senate to entertain a motion to reconsider a vote, recorded April 12, 1830, consenting to the appointment of an officer by the president, because the resolution confirming the appointment had been communicated to the president. At that time, the senate had no such rule as the house had when the rulings above referred to were made, nor any such rule as our state senate has. 'Its practice was in accordance with the ruling in the case mentioned by G-ilfry; but it later adopted a rule abolishing the absurd and inconvenient practice. Says Hinds, Yol. Y, section 5671: “On January 16, 1877, the Senate, while revising its rules, agreed to a rule providing that when a motion to reconsider a bill that had been sent to the House should be made, it should be accompanied by a motion requesting the House to return the bill to the Senate. This was intended, to obviate the difficulty experienced by the fact that the Senate •usage did not permit a motion to reconsider after the bill had passed from out the possession of the body.”
Gilfry, at page 493, puts a stronger case than any I have mentioned, showing how a motion to reconsider may be made in the United States Senate after expiration of the time allowed for reconsideration, prescribed by its rule. To accomplish it, a senator, after having moved a re-call of a bill passed by the senate and sent to the house, in. conformity with the senate rule, asks unanimous consent to move to reconsider the vote by which it passes, and no objection being made the motion is entertained. Here is jurisdiction after expiration of the time allowed by the rule.
Having shown jurisdiction of the House of Representatives, operating under a rule like that of the state senate, to entertain a motion to re-consider a vote of passage after the bill has gone to the senate, I turn to the question of its effect, when made. Hinds says, section 5704: “When a vote whereby an amendment has been agreed to is reconsidered the amendment becomes simply a pending amendment. A bill is not considered, in the practice of the House, passed or an amendment
In the view that a motion to reconsider suspends the vote to which it relates, and the adoption thereof rescinds or abrogates that vote, Roberts, Hinds, Cushing and all authorities agree. Besides, it is the effect universally given to it in legislative bodies. As against these and authorities cited in the portion of this opinion prepared in advance of consideration of the petition for re-hearing, I aim not disposed to adopt the views of an inferior Hew York court, Ashton v. Rochester, 60 Hun. 372, citing no authority for its contrary holding, and, in, this, I am further confirmed by the opinion of the Hew York Court of Appeals, Ashton v. Rochester, 133 N. Y. 192, in a case involving the same reconsideration that was passed upon in 60 Hun. The Court of Appeals said: “The vote on the resolution was reconsidered, and consequently the effect which it would otherwise have was lost.”
Einally, it is not for this or any other court to say what the true parliamentary rule is, or whether the senate properly construed its rule. Those were questions for the senate itself, as I have already shown. They are not constitutional questions, and the courts have no right to interfere with legislative decisions of purely legislative questions.
Entertaining the views expressed here, I thought a rehearing should be granted and voted for it. I also voted for a modification of the jridgments so as to allow costs in only one of the nine cases, for the reason that only one of them was really litigated, the others- having been submitted, without argument or full pleadings, under an agreement that the decision upon the