Lankford v. County Commissioners

20 A. 1017, 73 Md. 105, 1890 Md. LEXIS 95

• Court: Court of Appeals of Maryland
• Decided: November 13, 1890
• Status: Published

Opinions

Alvey, C. J.,

delivered the opinion of the Court.

This appeal is from a pro forma order passed by the Court below, upon an application for a mandamus to the County Commissioners for Somerset County, requiring them to appoint judges of election in each of the election districts of that county, according to the imovisions of Article 33, sec. 40, of the Code of Public General Laws of this State. By the pro forma order the petition was dismissed, and the petitioners have appealed.

The appellants, citizens of the State and legally qualified voters of the county, allege that the County Commissioners have neglected and refused to appoint judges of election as required by the provision of the Code; the said commissioners treating and relying upon the Act of the General Assembly of 1890, ch. 538, as a valid and constitutional Act, whereby the power of appointment of judges of election in that county is taken from the County Commissioners, and vested in a Board of Election Supervisors, appointed by the Governor of the State; and the appellants, alleging that the Act of 1890 is invalid, pray that the commissioners may be- compelled to appoint the judges of election under the provisions of the Code, irrespective of the Act of 1890, ch. 538. They allege that this latter Act is miconstitutional and void, upon three distinct grounds:

1st. That it was not duly approved and signed by the * Governor, within the time required by the Constitution.

2nd. That it is a local or special Act, and, as such, is repugnant to and in violation of section 33 of Article 3 of the Constitution; and 3rd. That it violates section 29 of Article 3 of the Constitution, because the subject of the Act is not sufficiently described in the title thereof.

In the petition it is alleged that the Act of 1890, ch. 538, was presented to the Governor for his signature on the 31st day of March, 1890, and was approved and' signed by him on the 8th day of April following. But, by the amended answer of the appellees, it is alleged, in denial of the allegation of the appellants, that the session of the General Assembly of 1880, adjourned sine die on the 31st of March, and that the said Act of 1890, ch. 538, was in fact presented to the Governor duly sealed, for his approval, on the 4th day of April, 1890, and was signed by him on the 8th day of that month, though the bill was endorsed by the Secretary of the Senate, as having been jn'esented to the Governor on the 31st of March, the day of the adjournment of the General Assembly. These facts, thus set up by the amended answer, are shown by the record kept by the Secretary of State, as required by section 23 of Article 2 of the Constitution; and a certified copy of which record has been introduced into the case by agreement of counsel, subject to all legal objections that could be taken thereto as legal and competent evidence of the facts shown by the record. The entries in this record of the official acts and proceedings of the Executive office are very full and explicit as to the fact and time of the presentation of the bill here in question (together with many other bills) in the Executive Chamber, and specially recording the fact that this and the other bills so presented had been endorsed by the Secretary of the Senate, as having been presented to the Governor on the 31st of March, instead of the 4th of April, the true date. The special character of the entries would seem to have been intended to correct the false entries on the bills; and it is not contended that these entries in. the record by the Secretary of State are not strictly in accordance with the facts as they occurred; but it is contended that such recorded entries by the Secretary of State are not admissible to impeach or control the endorsements on the bill itself made by the Secretary of the Senate. Or, in other words, that the official endorsements of bills made by the Secretary of the Senate and the Clerk of the House of Delegates are to be taken as conclusive, and that the official record of the acts and proceedings of the Executive Department cannot he appealed to for the purpose of showing the truth of what has transpired in that department, if in conflict with the clerical endorsements, on the hills presented to the Governor. But to this contention we cannot for a moment accede. The record lrej)t by the Secretary of State is required by the Constitution to be carefully kept and preserved, and it is competent evidence; and it is entitled to the same degree of credit as that accorded to any other record of mere official acts. And giving to this' record the credit to which it is entitled, it would seem to be too clear for any serious question that the Act assailed by these proceedings was in point of fact presented to the Governor for his approval on the 4th day of April, 1890, after the adjournment of the Legislature, and that the Act was approved on the 8th of April, 1890.

Having disposed of this preliminary question of evidence, we come now to consider the main questions for decision; and the first and principal of these is, was the Act in question signed by the Governor within the time allowed by the Constitution?

1. As we have just stated, the two Houses of the General Assembly adjourned sine die on the 81st of March, 1890, and the Act under consideration was not presented to the Governor for his approval until the 4th day of April thereafter. He approved and signed it on the 8th of April, and the bill was thereupon deposited in the office of the Clerk of the Court of Appeals, where all bills passed and signed by the Governor are required to be recorded.

The Constitution contains two sections that have direct relation to the subject of inquiry. The first of these is section 30 of Article 3, the Legislative Article; and the second is section IT of Article 2, the Executive Article, and which last mentioned section confers upon the Governor the qualified veto power.

Section 30, of Article 3, declares that “every bill, when passed by the General Assembly, and sealed with the Great Seal, shall be presented to the Governor, who, if he approves it, shall sign the same in the presence of the presiding officers and Chief Clerk of the Senate and House of Delegates.” And section 11 of Article 2, declares that ‘ ‘every bill which shall have passed the House of Delegates and the Senate shall, before it becomes a law, be presented to the Governor of the State; if he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it originated, which House shall enter the objections at large on its journal, and proceed to reconsider the bill; * * * * If any bill shall not be returned by the Governor iwithin six clays, (Sundays excepted,) after it shall have been presented to him, the same shall be a law in like manner as if he signed it; unless the General Assembly shall, by adjournment, prevent its return, in which case it shall not be a law.”

While the Constitution declares that, during the session of the Legislature, if the Governor does not return a bill that has been presented to him for approval, within six days after such presentation, (Sundays excepted,) it shall become a law in like manner as if he had signed it, there is no express limitation of time within which he shall sign the bill where it has been presented to him during the session, but an adjournment occurs before the expiration of the six days. In such case, it would seem to be clear, by implication, that the Governor would have the full extent of the six days within which.to determine whether he would sign the bill or not. The qualified veto power is conferred upon the Governor for a substantial and important purpose, — to restrain and defeat hasty and inconsiderate legislation. He may defeat the bill by assigning reasons against it during the session of the Legislature, unless overcome by a three-fifths vote of the members elected to each House; aud so he may defeat the bill by refusing to sign it, if the two houses adjourn before the expiration of the six days from the time the * bill is presented to him. The six days would clearly appear by implication to be allowed to the Governor within which to consider and determine whether any particular bill shall become a law. The right to this- time for consideration is clearly not defeated by the adjournment of the two Houses of the Legislature, before the expiration of the six days. There is nothing in the Constitution restrictive of the act of the Governor in such case, except the limitation of six days by implication, and it is very clear that a bill so presented to him may be signed by him at any time within the six days, notwithstanding the adjournment of the two Houses before the expiration of that time. In the event of his signing the bill within the time, it becomes a perfected law, and he does not return it to the Legislature, or to their officers or clerks, but he commits it to the custody of the clerk of the Court of Appeals to be recorded.

If, then, a bill presented to the Governor during the session of the General Assembly, and signed by him within the six days but after the adjournment of both Houses, may become a law, why may not a bill presented by the proper officers of both Houses, as soon as practicable after the adjournment, be signed by the Governor with the same effect? There is nothing in the Constitution that forbids it, unless we hold that the presentation of the bill to the Governor for his approval is a legislative act, and as such can not be performed after the adjournment of the General Assembly. This latter proposition is sought to be maintaimed by the appellants, and they rely for its support upon some general expressions found in the opinion of this Court in the case of Hamilton vs. State, ex rel. Wells and Hardesty, 61 Md., 14. But there was no such question in that case, and none such was intended to be decided. _ The question there was, whether the hill had ever in fact been presented to the Governor, and whether it had ever been legally prepared, by having the Great Seal affixed thereto, so as to require the Governor to accept and consider it. Here it is not pretended that the bill was not properly sealed when presented, or that it was not signed by the Governor in the presence of the presiding officers and chief clerks of the Senate and House of Delegates, as required by the Constitution. But it is insisted that these officers had no power to present the bill to the Governor after the General Assembly had adjourned; and if that contention be correct the bill under consideration was certainly not constitutionally signed by the Governor.

But is this contention maintainable? The General Assembly is restricted as to the period of its session, but it may enact laws up to the last moment of its session; and it is matter of common knowledge that many of the most important bills that are passed are frequently not acted upon and passed until near about the end of the session. These bills after their passage are supposed to be in the custody and keeping of the chief clerks of the two Houses; aud it is made their duty by statute, (Code, Art; 41, sec. 1,) as soon after the passage of bills as may he practicable, to seal them with the Great Seal of the State, and- present them to the Governor for his approval. To do this requires time, and where there are a great many bills passed just in the closing hours of the session, more time would likely be required than would be allowed, if all bills were required to be actually presented to the Governor before the adjournment of the session.

It is earnestly insisted, however, on the part of the appellants, that the terms of the section of the Code just referred to, contemplate and require the presentation of all bills to the Governor during the session of the Legislature, and not afterwards. But we do not so read the statute. It provides that “every hill, when passed by the General Assembly, shall be returned to the House in which the same originated, and shall, as soon thereafter as practicable, be sealed with the Great Seal, by the Secretary of the Senate or Chief Clerk of the House of Delegates, as the case may be, and presented to the Governor for his approval; and, in his jnesence, such clerical officer having custody of the same shall make on the back of every such bill, a memorandum in writing of the day and hour when the same was presented to the Governor for his approval; and such officer so presenting the same shall sign his name to such memorandum, and shall make a corresponding entry upon the journal of the House in which the same originated.” It is this latter direction of the statute that is supposed to indicate plainly that the bill should be presented to the Governor during the session of the General Assembly, and not afterwards; as otherwise the chief clerks would have no power to make entries in the journals of their respective Houses. But we do not think this a necessary inference from such, a provision of the statute. It was certainly competent to the Legislature to declare a rule to g’overn its officers and clerks, even though it might require them to make entries in their journals after the close of the session. But whatever may have been contemplated by the Legislature in the passage of the statute referred to, it is very clear it could not in any manner restrict the legal and rational construction of any of the provisions of the Constitution. The Legislature has, by this statute of 1884, made it the imperative duty of its Chief Clerks to seal and present the bills to the Governor for his approval, as soon after their passage as practicable, and this it was clearly competent for it to do. But these terms, “as soon thereafter as practicable,” are of a relative and dependent character, to he controlled more or less by the .circumstances of the case, and by no means furnish a definite and fixed rule. Nor has the construction of the statute contended for by the appellants been acted upon by either the legislative or executive departments of the State. It has been the practice as well since as before the passage of this statute of 1884, to present to the Governor bills in large numbers, after the adjournment of the Legislature, for his approval; and such bills have been signed and recorded as the laws of the State. Of the bills passed at the last session, many of the most important of them, as shown by the record in the Executive Department, did not reach the Governor for his action until the fourth day after the close of the session. It is not for this Court to say whether this be a good practice or not, — we certainly do not commend it. The question for this Court to decide is, whether a bill, regularly passed by the Legislature, and sealed as directed by the statute, can be constitutionally presented to the Governor and signed by him, after the session of the Legislature has closed. In the opinion of a majority of this Court, this may be done, provided the bill be signed by the Governor within six days from the time it is actually presented to him for his approval.

The practice under the veto clause of the Constitution of the United States has been much relied upon in argument, — the veto clause in our State Constitution being similar to that in the Federal Constitution. It is contended that as the practice under, and therefore the practical construction of, that clause of the Constitution of the United States has been to require the President to sign bills before the adjournment of Congress, the same practical construction of a similar clause in our State Constitution should prevail. But the circumstances that gave rise to the practice under the Constitution of the United States have never existed in our legislative proceeding.

It is true, the general practice of requiring hills to he presented to and signed by the President before the adjournment of Congress has been established and adhered to from the first Cong'ress under the Constitution to the present. That practice, however, seems to have originated in the operation of certain joint rules of the two Houses of Congress, adopted on the 6th of August, 1189, whereby all enrolled bills are placed under the charge of a Joint Standing Committee of the two Houses, and whose duty it is to procure the bills to be signed in each House by the presiding officer thereof, and then to present the same to the President for his approval, and report the fact and time of such presentation to their respective Houses. Joint Buies, 6, I, 8 and 9, of the two Houses of Congress. See, also, Jefferson’s Manual, sec. 48, tit. Assent. But while such is the Congressional practice, in placing bills before the President for his approval, we are not aware of any judicial construction of the clause of the Constitution which affirms that a bill presented to the President after the adjournment of Congress, and signed by him within the ten days from the time of such presentation, would not be valid as a law of Congress. On the contrary, we think it may be fairly inferred, from the reasoning and judgment of the Supreme Court of the United States, in the case of Seven Hickory vs. Ellery, 103 United States Rep., 423, that a bill so presented and signed, if by Congressional authority, would be maintained as a valid law. The case just referred to, in 103 U. S. was a case arising on the veto clause in the Constitution of the State of Illinois, w'hich is precisely similar to that in the Constitution of the United States, except in a particular in no manner, material to the present question, and it was held by the Supreme Court of the United States, the opinion being delivered by the late Mr. Chief Justice Waite, that a bill passed by the Illinois Legislature became a law when it was approved and signed by the Governor of the State within ten days after its presentation to him; and this, notwithstanding the fact that, when the hill was so approved and signed, the Legislature had adjourned sine die. In that case it appears that the Legislature adjourned on the 27th of February, 1867, on which day the hill was presented to the Governor, in whose hands it remained until March 7th, when it was approved and signed by him, and delivered to the Secretary of State to be filed. .There was no stress laid upon the fact that the hill had been presented to the Governor before the hour of adjournment of the Legislature; hut the judgment proceeds solely upon the ground that there was nothing in the Constitution to prohibit the signing the hill after the adjournment of the Legislature, if done within ten days after the bill was presented. In concluding the opinion the Court said: “In the present case the hill was approved and signed within the ten days, and, therefore, as we think, it became a law from the date of the approval, notwithstanding the Legislature was not in session at the time.” And this ruling of the Supreme Court of the United States is in accordance with the ruling of the Court of Appeals of New York, in People vs. Bowen, 21 N. Y., 517, of the Supreme Court of Louisiana in State, &c. vs. Fagan, et al., 22 La. Ann., 245, and of the Supreme Court of Georgia in Solomon vs. Commrs. of Cartersville, 41 Ga., 157, upon similar provisions in the Constitutions of those States. And there is nothing in any of these cases to suggest the idea that the ruling would have been different if the hill had been presented to the Governor after, instead of before, the adjournment of the Legislature, in accordance with a practice that had obtained, such as exists in this State. For in the absence of express or clearly implied limitation, the force of established practice, to aid in construction, is fully recognized in the cases to which we have referred.

2. The next question is, whether the Act, ch. 538, contravenes, in any manner, section 33 of Article 3 of the Constitution, in being either a local or a special law, such as is prohibited by that section of the Constitution.* The section of the Constitution just mentioned declares' that local or special laws shall not be passed in certain enumerated cases; and it also declares that no special law shall be passed for any case for which provision has been made by existing general law.

It is very clear that the Act under consideration is not a local or special Act for any of the particular inhibited cases enumerated in the Constitution; nor is it a special law or any case for which provision has been made by existing general law. It is not in any sense a special law for any case.

The Act under consideration purports to be a general law, and is amendatory of the general law of the State, passed to regulate the appointment of judges of election, the time, place and manner of holding elections, and of making returns thereof. The provisions of the Act are restricted in their application to about three-fourths of the State; the remainder of the State being subject, to the pre-existing law for the regulation of elections.

The constitutional provision (Const., Art. 3, sec. 49,) conferring upon the Legislature power to pass laws to regulate elections in the State, does not require that such laws should be uniform throughout the State. They must be free and equal to all persons entitled to vote; but there is nothing in the Constitution to require the modal proceeding to be the same in every part and section of the State. To the Legislature is confided the power to pass laws to regulate the subject-matter of holding and conducting elections; and while it may be a subject of regret that the provisions of the statute under consideration were not given application to the entire State, the exception of the nine counties from their operation does not subject the Act to any such constitutional objection as will invalidate it. No voter is hindered or prejudiced in his right to vote, by the mere difference in the method of condticting the election under the new law from that under the pre-existing law. The object of both laws is the same, the difference consisting only in fhe form and method of proceeding.

Whether the Act of 1890, ch. 538, be regarded as a general, or as a public local law, would seem to he quite immaterial; though, according to decided cases, it may be regarded as a general law as distinguished from a mere local law. It is said that an Act, within the meaning of the Constitution, may not be absolutely general to the whole State, and yet not be local in a constitutional sense. People, ex rel. vs. Newburgh, &c. Plank Road Co., 86 N. Y., 1, 7. And where the Bill of Rights of a State declared that all elections must be-equal, it was held, upon elaborate consideration, that an Act to regulate elections was not obnoxious to any constitutional objection because it did not provide an uniform regulation for all parts of the State. People, ex rel. vs. Hoffman, et al., 116 Ill., 587. The question of the wisdom or policy of such form of legislation is not for this Court to determine; but simply whether the Act under consideration has constitutional validity, and of that we are clearly of opinion it has.

3. The remaining question is one about which little need be said. It is contended by the appellants that the Act of 1890, ch. 538, is repugnant to section 29 of Article 3 of the Constitution, 'because the subject of the Act is not sufficiently described in its title. There is but one principal subject of the Act, and that is stated to.be “Elections.” The title of the Act is “An Act to repeal and re-enact with amendments, section 54 of Article 33 of the Code of Public General Laws, title (Elections, ’ and to add new sections thereto,” &c. In view of the many decisions heretofore made by this Coiirt upon this question, we can entertain no doubt of the sufficiency of the title of the Act before us.

(Decided 13th November, 1890.)

It follows from what we have said that the order appealed from should he affirmed, with costs to the appellees.

Order affirmed.