221 Wis. 551 | Wis. | 1936
The sole question for decision is whether bill No. 56, S., Sess. 1933, became a law by virtue of the failure of the governor to return it with his objections to the house in which it originated within six days (Sundays excepted) after it was presented to him. A determination of that question requires a construction of sec. 10, art. V, of the constitution of this state. That section is as follows :
“Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large upon the journal and proceed to reconsider it. . . . If, after such reconsideration, two-thirds of the members present shall agree to pass the bill, . . . it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the members voting for or against the bill . . . shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within six days (Sundays excepted) after it shall have been presented to him, the same shall be a law unless the legislature shall, by their adjournment, prevent its return, in which case it shall not be a law.”
The language which particularly requires construction has been italicized. Clearly, the governor did not return the bill
“Resolved by the senate, the assembly concurring, That the legislature adjourn sine die at 11 a. m., on Tuesday, July 25, 1933. Be it further
“Resolved, That when the two houses of the legislature adjourn on this day, July 15, 1933, they adjourn until Saturday, July 22, 1933, at ten o’clock, a. m.”
The resolution obviously provided for two different adjournments: (1) A sine die adjournment of the legislature; (2) a temporary adjournment of the two houses for more than three days.
The petitioner contends that the phrase, “unless the legislature shall, by their adjournment, prevent its return,” relates only to- a final or sine die adjournment of the legislature, and that the only adjournment which can prevent a return of a bill by the governor within six days is such an adjournment. The defendant contends that that phrase should be construed to apply to an adjournment of either house for less than three days, or to an adjournment of either house for more than three days with the consent of the other, as well as h> a final or sine die adjournment of the legislature. So this controversy hinges upon the question whether the word “adjournment,” found in sec. 10, art. V, means sine die adjournment of the legislature, or both a sine die adjournment of the legislature and a temporary adjournment of either or both of the houses. The word “adjournment” occurs only in sec. 10,
“And a majority of each [house] shall constitute a quorum to do business, but a smaller number may adjourn from dav to day. ...”
So much of sec. 10, art. IV, as is material, provides :
“Neither house shall, without consent of the other, adjourn for more than three days.”
It is clear that the word “adjourn,” as found in secs. 7 and 10, art. IV, relates to- temporary adjournments of either or both houses, while the word “adjournment” mentioned in sec. 10, art. V, relates to the adjournment of the legislature.
A perusal of the proceedings of the convention which framed the constitution sheds no light upon the question here presented. No question seems to have arisen in the minds of the framers as to the meaning of the word “adjournment,” as found in sec. 10, art. V, of the constitution of this state. That section is so like the phraseology of sec. 7 (second clause) art. I, of the constitution of the United States as to impel the conclusion that it was borrowed from that instrument and adopted by the framers without much', if any, discussion.
An examination of the joint rules of the senate and assembly, adopted by early legislatures, reveals no rule which in any sense might now be regarded as a practical construction of sec. 10, art. V. Apparently not until May 31, 1911, was the attorney general of this state called upon to render an opinion concerning a situation similar to the one here. On that day Levi H. Bancroft, attorney general, rendered an opinion to Governor McGovern to- the effect: (1) That the governor had the right to return a bill with his objections at any time on the sixth day after it was presented to him, even though the legislature was not in session on that day, it hav
In March, 1921, Governor Blaine returned Bill No. 55, S., Sess. 1921, to the senate with his objections. The question arose whether the bill had become a law by reason of his failure to return it within six days after it was presented to him. That bill was presented to the governor on March 5, 1921, at 4:35 in the afternoon. It remained with him until March 14, 1921, at 3 :15 in the afternoon, when it was returned to the senate. On March 11th, pursuant to a joint resolution adopted by the senate and assembly, both houses adjourned or recessed until March 15th. Upon the request of the chairman of the judiciary committee of the senate, William J. Morgan, attorney general, rendered an opinion to the effect that the recess or adjournment of the two houses from March 11th to March 15th was--not such an adjournment as prevented the return of the bill within the six days and that the bill -had therefore become a law. X Op. Atty. Gen. 256. Mr. Morgan’s opinion seems not to have settled the controversy so far as either the governor or the senate was concerned. Opinions by M. B. Olbrich, executive counsel, and by Harry Sauthoff, the governor’s private secretary, were submitted, in which conclusions quite contrary to those of the attorney general were expressed. Those opinions were followed by a carefully considered opinion, signed by E. E. Brossard, assistant attorney general, and approved by Ralph M. Hoyt, deputy attorney general (X Op. Atty. Gen. 298). That opinion concurred in the conclusions expressed by Mr. Morgan, supra. Dr. Charles McCarthy, chief of the legislative reference library, was requested for information relative to the settled practice of returning vetoed bills to the
No legislature, apparently, has adopted, or attempted to adopt, a rule as to the practice which it desired the governor, or his messenger, to pursue when returning a bill not approved by him to the house in which it originated, nor, so far as we are presently advised, has the legislature ever attempted to pass a law expressly authorizing the governor to return a bill to the house in which it originated when it was not in actual session, by delivering it to the clerk or other officer of that house.
It thus appears that there has been no such course of practical construction of the word “adjournment” as requires us to construe it as contended by defendant. Undoubtedly, at times, bills have been returned to the houses in which they originated, while actually in session, but that practice, assuming that it existed, does not unequivocably amount to a practical construction which lends support to defendant’s contention that the word “adjournment” relates to a temporary adjournment of either house. The settled practice for at least twenty-five years seems clearly to have been to return a bill to the clerk of the house in which it originated. No objection to that procedure seems to have been made.
We perceive no cogent reason why the governor should not be permitted to return a bill to the house in which it originated by delivering it to its clerk or other responsible officer to be held by the latter until afforded an opportunity to present it to the house at its first session thereafter.
Our conclusions are in harmony with the holdings of the great majority of the state courts, although not in harmony with the conclusions reached by the supreme court of the United States. Sec. 10, art.’ V, is practically identical with the corresponding provisions found in most of the constitutions of the several states and the constitution of the United States.
In the following cases the courts conchtded that the word “adjournment,” found in their respective constitutions, meant a final or sine die adjournment, and did not refer to or include a temporary recess or adjournment of the houses: Miller v. Hurford, 11 Neb. 377, 9 N. W. 477; Opinion of Justices (Soldiers’ Voting Bill), 45 N. H. 607; Hequembourg v. City of Dunkirk, 49 Hun, 550, 2 N. Y. Supp. 447;
In the following cases it was held that a temporary recess or adjournment of a house, or of the houses constituting the legislature) does not prevent the return of a bill by the governor to the house in which it originated, but that such return may be made by delivering the bill, together with the objections, to some responsible officer of the house in which the bill originated: Harpending v. Haight, supra; State ex rel. Putnam v. Holm, 172 Minn. 162, 215 N. W. 200; State ex rel. State Pharmaceutical Asso. v. Secretary of State, 52 La. Ann. 936, 27 So. 565; Soldiers’ Voting Bill, supra; Johnson City v. Tennessee Eastern Electric Co., supra. Compare, Tuttle v. Boston, 215 Mass. 57, 102 N. E. 350.
It is contended by the attorney general that since the decisions just hereinbefore cited all preceded the decision of the United States supreme court in Okanogan Indians v. United States, 279 U. S. 655, 49 Sup. Ct. 463, 64 A. L. R. 1434, generally referred to as the Pocket Veto Case, we should not follow them, but should adopt that construction which was given to a similar provision of the constitution of the United States by its highest court. We are unable to approve that contention. In the Pocket Veto Case, the court held that the word “adjournment,” contained in the constitution of the United States, referred not only to a sine die adjournment of the congress, but also to an adjournment of its first session, and that consequently the President was prevented from returning a bill to the house in which it originated- by the adjournment of the first session of the congress. The court held that the President could return a bill only to a house in actual session. In reaching that conclusion, the court apparently was strongly influenced by the long-established practice which had existed, by an opinion rendered by Attorney' Gen
It is our conclusion that Bill No. 56, S., Sess. 1933, became a law by virtue of the failure of the governor to return it with his objections to the house in which it originated, by delivering it to the clerk or some responsible officer thereof, within six days (Sundays excepted) from the time it was presented to him, and that the circuit court erred in granting the defendant’s motion tO' quash the alternative writ of mandamms herein.
By the Court.- — Order reversed, and cause remanded with directions to deny the defendant’s motion to quash the alternative writ of mandamus, and for further proceedings in accordance with the opinion.
“Senate. It has been the practice for executive communications including veto messages to be delivered to the chief clerk of the senate or in his absence to his assistant. In case the chief clerk questioned the date of the return as being overdue, he has made a practice of entering a penciled marginal notation on the message of the exact time in the day and the date of return. This was only done in exceptional cases.
“The old formal method of waiting until the senate should come to order number 9 executive communications on its calendar has not been as fully followed as in earlier session(s). Under the more formal procedure followed in earlier years when the senate came to order number 9 on its calendar it would wait for messages from the executive. The secretary of the governor would be announced by the sergeant in the following manner, ‘Mr. President, a message from the executive department.’ The secretary of the governor would then state, ‘Mr. President, I am directed by his excellency, the governor, to deliver to the senate a communication in writing.’ The same practice was followed in receiving messages from the assembly.
“For the past eight years, at least, the procedure has been as follows : The executive communication is delivered to the chief clerk or to his assistant in case the senate is in recess. It is likewise delivered to the chief clerk when the senate is in session and read under order number 9 on the day’s calendar-. A record of the time when enrolled bills are delivered to the governor is kept in a book, especially for that purpose kept by the chief clerk’s office. The governor’s office likewise keeps a record of the date and exact time when bills are received. It has not been the practice in the past for the chief clerk to give dated receipts including the time of day on which the communication was received to the messenger bearing the communication from the executive office.
“Information secured from chief clerk of assembly, March 25, 1921.
“In regard to veto messages and executive communications from the governor, the practice for many years has been to put the message on the desk of the chief clerk. Upon the next calendar day, when the house reaches order of business number 11, the message is delivered by the chief clerk. Previous to this, the message was de