176 Ind. 166 | Ind. | 1911
Lead Opinion
Appellant Woessner, sheriff of Marion county, on March 20, 1909, filed in the office of the auditor of Marion county a claim for allowance by the board of commissioners, for having committed a number of prisoners to the jail and also for having discharged a number of prisoners therefrom. His claim was filed pursuant to the provisions of the act of February 11, 1909 (Acts 1909 p. 8). This act, among other things, provides that “the sheriffs * * * shall tax and charge the following fees to be paid by the county, except as hereinafter provided. Such amounts to be designated ‘sheriff’s fees,’ which shall be the property of and belong to said sheriffs. * * * For every person committed to jail, twenty-five cents. For discharging each prisoner from jail, twenty-five cents.” These fees are commonly known as sheriffs “in and out” fees.
Appellee Bullock, a taxpayer, filed his complaint in the Marion Circuit Court against Woessner, the board of commissioners, the auditor and the treasurer of the county, to enjoin the payment of the claim. In his complaint, he avers that Woessner’s claim is founded on the provisions of the act of 1909, supra, and that this act is invalid, because it was not passed by the General Assembly in conformity with the provisions of article 5, §14, of the Constitution of Indiana; that the bill for the act was passed by the General Assembly of 1907, and on the last day of the session was presented to the Governor, who, within five days thereafter, filed it with the Secretary of State, with his objections thereto; that thereafter, on September 18, 1908, the General Assembly met in extra session on the call of the Governor, but this bill was not during that session laid before the General Assembly
Each defendant filed a demurrer to the complaint for want of facts, which demurrers were overruled, and defendants declining to plead further, judgment was rendered in favor of plaintiff, enjoining the allowance and payment of any portion of appellant Woessner’s claim. From that judgment, Woessner appeals to this court, and assigns as error the ruling of the lower court in overruling his demurrer to the complaint.
Article 5, §14, of our Constitution reads as follows: “Every bill which shall have passed the General Assembly shall be presented to the Governor; if he approves, he shall sign it, but if not, he shall return it, with his objections, to the house in which it shall have originated, which house shall enter the objections, at large, upon its journals, 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, it shall be sent, with the Governor’s objections, to the other house, by which it shall likewise be reconsidered ; and if approved by a majority of all the members elected to that house, it shall be a law. If any bill shall not be returned by the Governor within three days, Sunday excepted, after it shall have been presented to him, it shall be a law without his signature, unless the general adjournment shall prevent its return, in which case it shall be a law, unless the Governor, within five days next afier
Because the General Assembly, at its session in 1908 did not pass the bill, notwithstanding the objections of the Governor, it never became a law, and the circuit court did not err in overruling appellant Woessner’s demurrer to the complaint. Judgment affirmed.
Jordan, J., dissents.
Dissenting Opinion
Dissenting Opinion.
I am unable to concur in the result reached in this case by the majority of the court. The question involved is one affecting not merely the right of appellant Woessner to the fees that he claims, but is one of great public concern, namely: Can the will of the people, expressed through their duly constituted representatives composing the legislature, be defeated by the failure or neglect of the executive department to comply with the express mandate of our Constitution.
The conclusion of the majority opinion is that the act in dispute was not a law, because the General Assembly at the session of 1908, did not pass the bill over the objection of the Governor. But certainly it cannot be said that the General Assembly should have acted in a matter, when it was afforded no opportunity so to do. The question in respect to the valid existence of the statute involved hinges upon the requirements of article 5, §14, of our Constitution, which is set out in the majority opinion. It will be observed that by this section it is provided that “every bill which shall have
It will be observed that the part of article 5, §14, that I have embraced in italics, deals with the return of the bill by the Governor after it has been presented to him. After being presented to the executive, if it is not returned by him within three days, Sunday excepted, the Constitution declares that it shall become a law without his signature, unless the general adjournment shall prevent its return, in which ease the Constitution prescribes that the Governor shall file such bill, together with his objections, in the office of the Secretary of State, who shall lay the bill and the Governor’s objections thereto before the General Assembly at its next session, "in like manner as if it had been returned by the Governor.”
The manifest purpose of the Constitution in requiring that a bill, after it is passed by the General Assembly, shall be presented to the Governor, is to afford him an opportunity to consider its provisions, and either to approve, by affixing his signature, or to disapprove, by withholding his signature, and returning it with his objections to the house in which it originated.
Requiring the return of a disapproved bill, as provided by
The Governor of the State is the head of the executive department. Massey v. Dunlap (1896), 146 Ind. 350.
The office of the Secretary of State is but a subdivision of the executive department. French v. State, ex rel. (1893), 141 Ind. 618, 29 L. R. A. 113.
It is disclosed by the record in this ease that the bill in question, after it was passed by the General Assembly at its session in 1907, was received by the Governor, but was not returned by him to the General Assembly, with his objections, on account of the general adjournment of that body. Accordingly, within five days after the general adjournment, the Governor filed the bill, with his objections thereto, in the office of the Secretary of State. In September, 1908, the General Assembly was convoked in special session upon the call of the Governor, at which session, under the provisions of the Constitution, the bill, together with the Governor’s objections thereto, was required to be laid before the legislature, or returned to that body by the Secretary of State, “in like manner as if it had been returned by the Governor. ”
The return of a bill, disapproved by the executive, to the General Assembly is quite essential under the Constitution in order to prevent its becoming a law; as much so as is its presentation to him after its passage in order that it may become a law under the constitutional requirement.
When the Governor disapproved the bill here involved, he was, under the circumstances as shown in this case, empowered by the Constitution to file it, with his objections thereto, within five days next following the adjournment of the General Assembly, in the office of the Secretary of State, which office, as heretofore shown, is a subdivision of the executive department. After the bill is filed in the secretary’s office, the Constitution points out the agency through which the
If this is not true, then the veto of the Governor became absolute; a result in no manner contemplated by our Constitution, or by any other so far as I have been able to discover. It certainly was not intended by the framers and ratifiers of the Constitution that the Secretary of State, by sheer neglect or failure to comply with the constitutional mandate in respect to the return of the bill, could defeat the will of the legislature, or rather, that of the people as expressed through that body. If this is true, then our fundamental law should be amended or changed in order to prevent such a result in the future.
Doubtless the failure of the Secretary of State to comply in this case with the duty enjoined upon him by the Constitution was due to a mistake, and not to any intention on his part to prevent the bill from becoming a law; but the cause to which his failure or neglect may be attributed is not material, the result thereof must be the same, regardless of the cause that produced it.
It cexfainly is untenable and unreasonable to assert that it was in any manner the duty of the legislature at the special session of 1908 to go upon a voyage of discovery, in order to ascertain what action the Governor had taken in
In my opinion the act involved is valid, and the judgment below should be reversed.