| Va. | Jul 15, 1882
delivered the opinion of the court.
This is an application to this court for the exercise of its original jurisdiction by way of mandamus.
During the session of the late general assembly, senate bill No. 23, entitled an act to incorporte the Virginia and Carolina Railroad Company, regularly passed the senate on Friday, January 20th, 1882, as shown by the printed journal of the senate, page 159. The bill was afterward sent to the house of delegates, where it was referred to the committee on roads, and was amended, as appears by the printed journal of the house of delegates, page 296.
On Thursday, February &th, 1882, said bill as so amended was regularly passed by said house, and a motion to reconsider the vote by which the bill was'passed was rejected. (House Journal, p. 303.) Thereupon the bill, as amended and passed, was returned to the senate; and on Friday, February 10th, 1882, the senate agreed to the house amendments to said bill. (See Senate Journal, p. 252.)
On the same day a motion was made to reconsider the vote by which said amendments were agreed to, and on the next day—February 11th—the motion to reconsider was voted upon and defeated. (See Senate Journal, pp. 260-267.)
And thereupon said bill, as passed by both houses, was enrolled, examined by the committee on enrolled bills, and signed by the president of the senate and the speaker of the house of delegates, as required by law,
The bill having thus been passed, examined, enrolled, and signed as required by law, was, on the 15th February, 1882, presented to the governor, as required by the 8th section of article iv, of the constitution.
After the bill had been so passed and presented to the governor—to-wit, on Thursday, February 16, 1882—a joint resolution was introduced in the Senate requesting the governor to return said bill to the general assembly, and
On the next day, February 17th, the said resolution was taken up (in the house of delegates) and agreed to by a vote not recorded. See House Journal, p. 354.
In response to this joint resolution, on the 20th February, 1882, the governor sent said enrolled bill to the Senate (see Senate Journal, p. 305), accompanied with the following communication:
“ Commonwealth of Virginia,
“ Governor’s Office,
“Richmond, Va., Feb. 20th, 1882.
“ To the Senate of Virginia:
“In response to a joint resolution, passed on the 17th inst. by the general assembly, I hereby return senate bill Ho. 23, entitled an ‘Act to incorporate the Virginia and Carolina Railroad Company.’
(Signed) “¥m. E. Cameron.” ■
The petition further alleges that on the same day the governor sent to the clerk of the senate for the said enrolled bill, and it was returned to him by said clerk, and that it was afterwards delivered by the governor, along with other bills to the keeper of the rolls.
The petition further alleges that the legislature did not adjourn until more than five days had elapsed after the said bill had been presented to the governor. It is further averred in said petition that when petitioners learned that respondent, P. H. McCaull, clerk of the house of delegates and keeper of the rolls, had furnished to the superintendent of public printing for publication the manuscript of the other laws enacted by the general assembly of Virginia at its session which came to a close on the 6th of March, 1882, but had omitted to furnish the said superintendent of public printing with the manuscript of said act incor
The prayer of the petition is that this court may award its peremptory writ of mandamus to compel the said keeper of the rolls to furnish petitioners with a copy, certified by him, of said act of assembly entitled “An act to incorpoxate the Virginia and Carolina Railroad Company,” passed by the general assembly at its regular session commencing December 7th, 1881, and ending 6th March, 1882, and designated on the calendars of the two houses as senate bill No. 23, and also commanding him to prepare the said act for publication and to furnish the superintendent of public printing the manuscript thereof properly arranged for being printed, and to cause this same to be published and in-flexed among the acts passed by the general assembly at the said session.
Upon this petition this court awarded a rule upon the respondent, the keeper of the rolls, to show cause why a peremptory mandamus should not be issued in accordance with the prayer of the petitioner.
The respondent appeared on the day named in the rule, and demurred to the petition, and afterwards answered the same. The demurrer of course admitted the facts set forth
Therefore, the questions of law we have to determine arise upon the facts fully and minutely detailed as above; and these questions may be stated as follows:
First. Has the court jurisdiction to hear and determine-the controversy between the petitioners and respondent?
Second. Is the writ of mandamus the proper remedy?
Third. Has senate bill Ho. 23, in the petition mentioned,, become an act of the general assembly which must be published as a part of the statute law of the State under which the rights of the petitioners are defined and secured ?
1st. Has the court jurisdiction? It is one of the fundamental principles of our government, State and Federal,, that the legislative power should be separate from the judicial. To enact laws, or to declare what the law shall bey. is legislative power. To interpret, law—to declare what, law is or has been—is judicial power. The power to decarel what is the law of the State is delegated to the courts. The power to declare what the law is, of necessity involves the power to declare what acts of the legislature are, and what acts of the legislature are not laws. In ascertaining what acts of the legislature have the force and. effect of laws, the courts are not confined to an examination only of what the proper officer of the State charged with that duty may choose to publish in books or pamphlets, purporting to contain her statutes. If this were so, it would put it in the power of the keeper of the rolls, or other officer charged with the duty of publication, to withhold or suppress such acts, and thus defeat the legislative will and impair or destroy the rights of the citizen.
In Gardner v. The Collector, 6 Wall. 499" court="SCOTUS" date_filed="1868-03-30" href="https://app.midpage.ai/document/gardner-v-collector-87947?utm_source=webapp" opinion_id="87947">6 Wall. 499, the question arose in the supreme court of the United States, as to the power of a court of law to determine when an act of congress became a law. The provision of the constitution of the
In the case above refered to, it seems that congress passed through both houses in December, 1861, a bill which declared “ that from and after the date of the passage of the act,” the duties on tea should be twenty cents per pound. A previous statute had fixed the duty at fifteen cents. The roll of the engrossed bill was taken to the President and by him thus signed, "no year being indicated.”
Approved December 24th.
Abraham Lincoln.
Gardner in 1864 entered at the custom-house in New York certain packages of tea, on which the collector of customs there, assuming that there was a statute laying that duty, required him to pay twenty cents per pound. Gardner declined to pay twenty cents per pound on the ground that there was no statute fixing that duty, but offered to pay fifteen cents, the duty fixed by what he asserted to be the only act in the case. Being compelled to pay the twenty cents, and having paid in under protest, he brought suit in the court below to recover the excess. The
This question (very much the same now before us—viz: whether the bill had passed, and whether it was then the law) was most elaborately and learnedly discussed by counsel, and most carefully considered by the court in a carefully prepared and able opinion, delivered by Mr. Justice Miller, which concludes as follows: “We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question, always seeking-first for that which in its nature is most appropriate, unless the positive law has enacted a different rule. (See also Town of South Ottowa v. Perkins, 94 U.S. 260" court="SCOTUS" date_filed="1877-03-26" href="https://app.midpage.ai/document/town-of-south-ottawa-v-perkins-89464?utm_source=webapp" opinion_id="89464">94 U. S. 260; Cooley’s Cons. Limitations, 94 side p.)
I am of opinion, therefore, on principle as well as authority, that the question we are called upon to consider, whether senate bill bio. 23 is an act passed by the legislature has become a law, is a question within judicial power, and that this court has jurisdiction to determine the controversy between the petitioners and respondent.
We come now to consider the second question: Is the the writ of mandamus the proper remedy in this case? The office of the writ of mandamus is to compel corporations, inferior courts, and officers to perform some particular duty incumbent upon them, and which is imperative in its nature, and to the performance of which the relator has a clear legal right without any other adequate specific rem
Now, applying the principles declared by these authorities to the case before us, if it can be shown that the bill in question had become an act of the general assembly, and that it was the duty of the respondent, as an officer of the State—a keeper of the rolls—to publish this act, or to furnish a certified copy to the petitioners, and he refuses to perform this official duty, then the. remedy, and the only specific remedy, is mandamus to compel him to perform such duty.
And this brings me to the consideration of the third and last question we have to determine, to-wit: Is senate bill No. 23, in the petition and proceedings mentioned, entitled “An act to incorporate the Virginia and Carolina Bailroad Company,” such an act of the general assembly as became a law of the State, and which the keeper of the rolls is required by law to publish?
Now, what is required to transform a bill into an act of assembly so as to have the form and effect of a law of the State? The constitution answers that question, and answers it, I think, in plain and unmistakable terms. § 8, art. 4, declares that “ Every bill which shall have passed the senate and house of delegates, and every resolution requiring the assent of both branches of the general assembly, shall, before it becomes a law, 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, who shall enter the objections at
Now, the bill under consideration was passed by both houses, and a motion to reconsider the vote by which it passed was voted down in both houses. It was presented to the governor—and the only question is, Was it ever “returned’’ by him within the meaning of the constitution ? If the governor refuses to sign a bill, How must he return it as required by the constitution? Its terms are plain and specific he shall return it with his objections; not only so, but he must return it with his objections to the hoim in which it
Now, the question is, Was senate bill No. 23 ever returned by the governor, in the sense and in the mode required by the constitution? Let us see. On the 20th February, 1882, he sent the following communication in response to a joint resolution, passed on the 17th instant by the general assembly :
“ I hereby return senate bill No. 23, entitled Lin act to incorporate the Virginia and Carolina Railroad Company.’ ”
Is this such return as is contemplated by the constitution? Is this brief communication of three lines, which contains no word of objection to be construed into a return “with his objections,” to the house in which the bill originated ? And how would that house proceed to “ enter at large on its journal” these “objections” when there is not one word of objection in the communication? And When thus returned with this communication, would the most ignorant parliamentarian in either house contend that it required a two-thirds vote to pass the bill over these objections, which were no objections, and which were not, and could not be spread upon the journal? The truth is, that the governor never suspected that he was performing the official duty imposed by the constitution in mating this communication. This is demonstrated by the fact stated in the petition, admitted by the demurrer, and not denied in the answer, that on the same day this communication was made he sent for this bill, and it was “returned” to him. It is plain that the action of the governor was a mere act of courtesy on the part of one co-ordinate branch of the government towards another, and was not intended and cannot be construed as a compliance with
The constitution prescribes with minuteness the course the governor must pursue with regard to bills placed in his hands, and its mandates are imperative. (Cushing, p. 931, § 2435; Cooly Con. Lim. 115.) The constitution fixed his duty. He cannot evade that duty if he would, by allowing the legislature to recall the bill from his hands, and to defeat, by mere non-action, a measure they have once declared, with due solemnity, to have passed.
As was said by Judge Potter, in The People v. Devlin, 33 New York, p. 277, a case very similar to this in many respects, the act of courtesy of the governor in returning to the general assembly the bill at their request, conferred no power upon the houses of assembly to act further upon it. Even if the governor had intended to allow them so to act (as by his subsequently signing the bill in the form he first received it seems he did not), it is still a question of power. No authority is shown to be possessed by the governor to perform such an act as a part of the law-making power. If the assembly possessed the power of recalling bills from the governor after being passed by both houses and sent to him, it is not found in parliamentary law, and no custom of that kind is shown.
I think it is plain, under the provision of the constitution, that the governor must choose one of two courses. He must either act by approving or disapproving a bill or allowing it to become a law without his approval by the force and effect of the constitution itself. There is no way in which he can escape this choice. No power is given him to return a bill to the legislature, except in the case of a veto; and, by failing to veto it or return it with his objections, he allowed it to become a law without his approval.
In Harpending v. Height, 39 Cal. 189" court="Cal." date_filed="1870-07-01" href="https://app.midpage.ai/document/harpending-v-haight-5437113?utm_source=webapp" opinion_id="5437113">39 Cal. 189, the precise question we are now considering, came before the supreme court of California—to-wit: whether the governor made to the senate in which it had originated the “return required by the constitution ” ? The provision of the California constitution is precisely like ours, except ten days instead of five are given for consideration. After elaborate discussion of the question, the court unanimously held that “ the return of a bill made to the house in which it originated, but so made that the house can neither reconsider the bill, nor examine the objections to its passage, do not in either case constitute the presentation or return required by the constitution.”
The court, speaking of the elements of a return under the constitution of California, which in this respect is identical with ours, says: “ It must be a step taken by which his •own time for deliberation is ended, and that for the deliberation of the senate is begun; that the bill itself must be put beyond the executive possession; * * * * that as
Upon these authorities, and for the reasons above given,. I am clearly of opinión that the return of the bill with the brief communication from the governor, was not such a return of the bill as is contemplated by the constitution. The very language of that communication negatives the idea that he disapproved the bill. It states no ground of objections, but returns it in response to a joint resolution of the general assembly requesting a return of the bill, The truth is, the bill was never beyond the executive control, as shown by the fact that the governor, on the very day of its return to the senate, sent for the bill, and it was returned to him by the clerk of the senate and kept by him until it was placed in the hands of the keeper of the rolls, together with other bills. I think the mere delivery by the governor of this bill to the senate, at-the request of the general assembly, was of no effect, but was merely an act of courtesy which was of no legal effect,, and in contemplation of law the bill never left the governor’s hands until it was placed in the hands of the keeper of the rolls.
I propose now to consider very briefly the question, Did the legislature, by joint resolution, have the power to recall the bill from the governor after it had been passed by both houses and sent to the governor? This involves the inquiry, When does the power of control over a bill passed, by both houses cease and determine ?
If the general assembly had the power to recall the bill, it must have been for the purpose of a reconsideration. The object of requiring possession of the paper must have been for a 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.) 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.
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.” B/ule 61 of the senate is to the same effect. (See also Jefferson’s Manual, p. 92, which is adopted by both houses as their guide.)
According to these rules, and the general practice, a motion to reconsider the same vote cannot be made twice, and if made at all, must be made upon the day of the vote or upon one of the two ensuing days. In the case before us, a motion to reconsider was made in each house within the proper time and was lost. (See House Journal, 303, and Senate Journal, 261-267.) After this was done, and after it was sent to the governor, the legislature had no further control over the bill. It was then before the governor for his action or non-action, and was beyond the control of the legislature.
In People v. Hatch, 19 Ill., the court, speaking of the power of reconsideration possessed by the legislature and the executive, says:
“ There must be a time when the right to reconsider ter*890 minates, and the same rule applies in the one case as in the other, and that is when the bill or law has passed, from the custody or control of the department seeking to reconsider.” * * * “And this right to reconsider remains so long as the bill is in the custody of the body proposing to reconsider unless they have some special rule restraining the right to reconsider.”
It has been suggested in argumeut here that the passage of the joint resolution requesting the return of the bill operated as a repeal of rules of the house, and that the bill was again before them for reconsideration. I think that this view is not a sound one. Of course each house has the right, under the constitution, to adopt its own rules. But when those rules are once adopted, they must govern each house until repealed and another rule is established in its stead. No joint resolution (passed, it may be, when the house may have a bare quorum) relating to a particular bill, can have the effect to strike out a rule carefully considered and adopted for the guidance of the house in all cases. This can only be done by the formal abrogation of the rule and the adoption of another in its place.
To hold otherwise, and to declare that by a joint resolution the general assembly might retain its power over a bill after it had been passed, and after motion to reconsider made and voted down within the time prescribed by the rules, there could be no finality to legislative proceedings. Besides, such a construction in favor of the powers of the legislature would trench upon the power and prerogative of the governor.
As was so well said by one of the able counsel for the petitioners, in a brief filed by him (Mr. 'Wellford): “The constitution, moreover, provides that all bills shall be presented to the governor—that is, presented to the governor in such a way that he will be able to consider the merits and demerits of a bill, deliberate upon it, and finally determine whether he will approve or disapprove. The consti
I am of opinion, therefore, that senate bill No. 23 having been passed by both houses of the general assembly, and a motion to reconsider having been voted down by both houses, and the bill having been presented to the governor, and never having been returned to the legislature in the sense contemplated by the constitution, but having been retained by him for more than five days, and the legislature not having adjourned within that period—said bill became an act of assembly and a part of the statute laws of the State, by which certain rights and franchises vested in the petitioners; and that it was the duty of the respondent, P. H. McCaull, clerk of the house of delegates, and as such keeper of the rolls, to publish the same, in accordance with the provisions of sec. 14, ch. 14, of the Code of 1873. And to this end a peremptory mandamus must be awarded by this court.
Mandamus awarded.