State v. Board of Supervisors

64 Miss. 358 | Miss. | 1886

Campbell, J.,

delivered the opinion of the court.

The State had the right to appeal without giving an appeal-bond. Code, § 2333. Were this not true the appeal would not be dismissed, but a bond or deposit would be received and the appeal be maintained. . In no case can a party lose the benefit of an appeal by any error as to the manner of appealing. The appeal may be perfected here. Code, § 1407. The motion to dismiss the appeal is denied.

The record presents the question whether a bill which has passed both houses and been signed by their respective presiding • officers and presented to the governor within five days of the adjournment of the legislature, may be signed by the governor and thereby be made a law from that time, after the adjournment of the legislature ?

In Hardee v. Gibbs, 50 Miss. 802, this question was answered in the negative, but we have no hesitation to overrule this decision, which is not supported by reason or authority, and plainly shows a lack of attention to or comprehension of the language of the constitution, The postulate of the opinion iu that case is that the governor, in approving bills, is a’ component part of the legislature, and his signing a bill is a legislative act, and therefore it was said he has no more power to legislate in vacation than either house of the legislature. Grant that the governor in signing a bill, and thereby evidencing his approval, does perform a legislative act, it is as governor he acts, as prescribed by the constitution, and he is governor after the adjournment of the legislature as much as before. The constitution makes the governor an agent in making laws. Every bill passed by the two houses is to be presented to him. If he approves he shall sign it; if not he shall return it with objections within five days (Sunday excepted) to the house in which it originated, or it shall be a law without his signature, unless the legislature by adjournment prevent, in which case it shall be a law at the end of three days after the next meeting of the legislature if not sent bac£: by the governor with his objections in that time. The scheme of the constitution is that the legislature and the governor shall make laws, and it prescribes how this is to be done. The two houses compose the legislature. It is to pass bills, and they are to be presented to the governor, who is to sign if he approve, or return with his objection if he does not approve; and that he may have time to determine his action, five days (Sunday excepted) are allowed him, during the session of the legislature, in which to consider ,eaeh bill, which is to be a law by the lapse of that time during the session of the legislature, with or without his signature, on the assumption that, if he does not return the bill, as he may, with his objections, he approves it. While the legislature is in session laws are passed by a majority of each house, with the approval of the governor expressed by his signing, or implied by his failing to return the bill with objections in the five secular days allowed him, or by two-thirds of each house notwithstanding his objections. But if the legislature, by an adjournment before the governor has had five days to act on the bill, prevent a return of it with his objections, he is allowed all of the time before the three days after the next meeting of the legislature shall expire to send back the bill disapproved, and if he does not so return it, it shall be a law by mere effluxion of time. A fortiori should it be a law when the governor approves and signs it. It has then received the constitutional impress which makes it a law. It passed both houses, it was presented to the governor, he approved it, and he signed it. This is what the constitution says shall make a law. There is not a word in the constitution to suggest that the governor, whose functions as such are not dependent on sessions of the legislature or limited to them, shall be limited to the period of the session of the legislature in performing his agency in making laws. He must return a bill with his objections in five days during the session of the legislature or it will be a law, but this gives no •countenance to the proposition that because the legislature adjourns within the five days allowed him for considering bills during its session, he may not act as governor and sign the bill, which only lacks his approval to complete the several stages prescribed by the constitution for it to become a law. A time is prescribed by the constitution in which the governor may return a bill with his objections. That time is five days during the session of the legislature, and the whole interval between adjournment and three days after the next meeting of the legislature in case of bills presented to the governor within five days of the adjournment of the legislature. No time is prescribed by the constitution in which the governor shall sign.if he approve. Manifestly, as he may return with objections in five days during the session, he may sign any day during that time, and as he may return with his objections within three days after its next meeting, in case the legislature by adjournment prevented its return (after the time for consideration and before adjournment) during its session, he may sign the bill any day of the period allowed him in which to return it. Why should the validity of the act of the governor in signing a bill depend on his performance of it- while the legislature is in session ?

Is not the approval by the governor, signified by his signing it, what the constitution requires to convert the bill into a law, because of the concurrence of the two houses and the governor in its expression? Is the approval of the governor, as evidenced by his signing the bill, any less potent because done in the vacation of the legislature? It acted, it passed the bill, and adjourned. It then rested with the governor to deal with this completed act of the two houses. It is not yet a law, but a bill. It must receive the approval of the governor to be a law. What hinders his performance of duty as governor with respect to this bill which has passed both houses and been presented to him? Were the legislature in session he must act independently and as governor in dealing with the bill. If he signs he converts the bill into law by his signing. He may inform the legislature or either house of the fact that he has signed, but he need not do this. It is a mere courtesy. His signing makes the bill a law, and its validity does not depend on his making any communication to the legislature or either house on the subject. If he disapproves a bill he must return it with his objections, but if he approves he is to sign it, and need never communicate with either house on the subject. The finishing act by which a bill is transformed into a law is the governor’s approval as shown by his signing, and that may be as long as he has the bill in his hands for his official action. So long as he may return it with his objections he may convert the bill into a law. by his approval and signing. So long as he may disapprove and return the bill with his objections he may assent to the expressed will of the two houses, and as governor unite with the legislature in passing a bill into a law.

Such is the obvious scheme of the constitution. Its provisions are so plain as to exclude interpretation. Argument cannot make-them plainer. The opinion in Hardee v. Gibbs rests on the erroneous assumption that, because the governor in signing a bill performs a legislative act, he must do it during the session of the-legislature. 'Whatever the nature or proper designation of his act in reference to bills passed by both houses and presented to him, he acts independently as governor in pursuance of the constitutional provision, and nothing in the constitution requires or suggests that his performance of his constitutional duty in acting with reference to bills presented to" him shall be performed while-the legislature is in session, but the contrary is plainly suggested by the constitution, and the assertion that he cannot sign a bill in vacation is unwarranted by anything in the language of that instrument or in the nature of the duty to be performed by the governor as a component part of the law-making power.

Our view is abundantly supported by the reasoning of the-following cases: State v. Fagan, 22 La. An. 545; People v. Bowen, 30 Barb. 24; Same Case, 21 N. Y. 517 ; Seven Hickory v. Ellery, 103 U. S. 423.

Even without such support we should feel constrained by the unmistakable language of the constitution to overrule the former decision.

The governor was authorized to sign the bill in vacation, as he-did, and it thereby became an act of the legislature. But this action of mandamus is premature. By the terms of the act, approved August 26, 1886, an election is to be ordered and held in August next, i. e., August, 1887, for the act speaks from the date of its approval. It is not to be assumed, and on that assumption to base a judicial proceeding, that the body charged with a duty under this act will not perform it at the proper time. A presumption must be indulged that duty will be performed.

Affirmed.