Powell v. Hays

104 S.W. 177, 83 Ark. 448, 1907 Ark. LEXIS 125

• Court: Supreme Court of Arkansas
• Decided: July 1, 1907
• Status: Published

Opinions

Hill, C. J.

The prosecuting attorney of the thirteenth judicial circuit invokes the supervisory jurisdiction of this court by filing herein a petition for mandamus, in which he alleges that the circuit judge of his circuit has declined to hold a term of the Lafayette Circuit Court which is fixed by law to begin on the 4th Monday in July, and prays that the circuit judge be commanded to hold said July term of the Lafayette Circuit Court. Precedents for this exercise of the supervisory jurisdiction of this court are found in Parker v. Sanders, 46 Ark. 229, and Waterman v. Hawkins, 75 Ark. 120.

The judge has responded to the petition, admitting the facts alleged, and taking issue as to his authority to hold the circuit court of Lafayette County.

The determination of this issue involves the validity of a veto by the Acting Governor on May 15, 1907, of a bill passed by the General Assembly and signed by the then Acting Governor on May 14th, which bill transferred Lafayette County from the thirteenth to the eighth judicial circuit, and changed the time of its terms of court.

The respondent, desiring to have developed all the facts relating to the signing of the bill. on the 14th and its veto on the 15th, asked the court to hear testimony. The court appointed a commissioner to take testimony, and the testimony of Hon. John I. Moore, who was Acting Governor on the 14th of May, and of Pión. X. O. Pindall, who was Acting Governor on the 15th of May, and of Mr. Paul Little, private secretary to the Governor, was taken, and the veto message and proclamation, and records of the Secretary of State relating to the bill, were introduced.

The petition and response and a summary of the evidence will be stated by the Reporter. For the purpose of this opinion, it is sufficient to say:

Owing to the absence and illness of Governor Little since January, 1907, the President of the Senate has exercised the powers of Governor.

The General Assembly adjourned at noon on May 14, 1907. Under section 12, art. 6 of the Constitution, the powers of the Governor were, for several months, and until that adjournment, being exercised by Hon. John I. Moore, President of the Senate. His term as senator expiring at the next election, pursuant to section 17, art. 5, of the Constitution, another President was elected. Shortly before noon on the 14th, Hon. X. O. Pindall was elected President of the Senate, and assumed the powers of Governor at noon, Governor Moore then retiring; the adjournment of the General Assembly being the time when one ceased to act and the other began acting as Governor.

The petition of the prosecuting attorney alleged that the circuit judge has notified the circuit clerk of Lafayette County, in a communication attached to the petition, that he declines to hold the July term of said court, and assigns as his reason for said refusal that in his opinion Lafayette County has been transferred to the eighth judicial circuit, and the petitioner alleges “that the circumstances which, in the opinion of said judge, warrant him in taking the action indicated as. aforesaid are as follows, viz: A bill was passed in the respective houses of the Arkansas General Assembly, and in due course- reached the Governor on the 14th day of May, 1907; that the then Acting Governor, Hon. John I. Moore, affixed his signature to said bill with the intent and for the purpose of approving the same in the manner provided by the Constitution to make said bill effective as law; that the said bill, with the said Acting Governor’s signature indorsed thereon, was not returned to the house in which it originated, nor was the same lodged in the office of the Secretary of State, but remained in the Governor’s office and in possession of the Executive; that at twelve o’clock m. on said day Hon. X. O. Pindall was by the Senate of Arkansas elected President thereof and duly qualified as such, and thereupon the said General Assembly adjourned sine die. That, in consequence of the continued disability of the Governor of the State, the said Pindall immediately after the said adjournment was inducted into the office of the Governor, in substitution of the said Moore, and thereupon took upon himself and proceeded to discharge for the time being the several duties of the said office of Governor; that on the morning of the 15th day of May, 1907, finding said bill, so signed as aforesaid, still in the Governor’s office, and deeming the same to be under his control, and being unwilling to permit the same to become a law, [he] rescinded the action of his immediate predecessor, and withheld executive approval thereof, and -announced his reasons therefor in a veto -message which was duly lodged in the office of the Secretary of State and properly proclaimed.”

The petitioner states that under this condition of fact the circuit judge maintains that, upon the approval of the bill by Acting Governor Moore, the same became a law, not subject to be vetoed, canceled or recalled by Acting Governor Moore or any successor of his; but the petitioner maintains that the act of signing by Governor Moore did not become operative so as to invest the said bill with the qualities of law until the same had been returned to the house in which it originated, if signed during -the session, or had passed out of the possession of the Governor by being lodged with the Secretary of State, the final custodian of the written laws of the State.

The respondent states the facts substantially as the petitioner does, with the additional allegation that Governor Moore, when he signed the bill, directed the Governor’s private secretary to deliver the bill to the Secretary of State; and it was also alleged that the signing of the bill by Governor Moore was intended to be final, and that he vacated the office, understanding and believing that his action was final and irrevocable; but this allegation is no stronger thant the one made by the petitioner wherein he says: “That the then Acting Governor, Hon. John I. Moore, affixed his signature to said bill with the intent and for the purpose of approving the same in the manner provided by the Constitution to make said bill effective as law.”

It is thus seen that the parties have in petition and response joined issue as to the law governing a state of facts over which there is no dispute. Hence it is unnecessary for the court to pass on the competency of the evidence offered — a question upon which the authorities are divided — as the facts alleged by the petitioner are fatal to the veto relied upon by him. It may be added that the petition formed an issue of law on the facts therein stated, and later these facts were proved by the testimony to be the truth of the case; the pleader had candidly presented the real case.

Sec. 15, art. 6, of the Constitution, says: “Every bill which shall have passed both houses of the General Assembly shall be presented to the Governor; if he approve it, he shall sign it; but if he shall not approve it, he shall return it, with his objections, to the house in which it originated,” etc. It is further provided in said section that if a bill “shall not be returned by the Governor within five days, Sundays excepted, after it. shall have been presented to him, the same shall be a law in like manner as if he had signed it; unless the General Assembly, by their adjournment, prevent its return; in which case it shall become a law, unless he shall file the same, with his-objections, in the office of the Secretary of State, and give notice thereof by public proclamation within twenty days after such adjournment.”

It will be noted that the Constitution does not require the Governor to report his approval of a bill to the General Assembly, nor file it with the Secretary of State in order for it to-become a law. “If he approve it, he-shall sign it.”

The time allowed the Governor for the consideration of bills is a matter of privilege with him, and may be waived by him, and he may validly sign a bill any time within the period allowed. Hunt v. State, 72 Ark. 241.

The President of the United States was authorized to appoint justices of the peace for the District of Columbia, by and with the advice and consent of the Senate; and he was required to commission all officers thus appointed. Mr. Adams nominated Wm. Marbury to be a justice of the peace, sent his nomination to the Senate, which advised and consented thereto, and the commission was duly signed by the President and attested with the great seal of the United States. But before said commission was delivered to Mr. Marbury President Adams retired from office, and was succeeded by Mr. Jefferson; and the commission was withheld from Mr. Marbury, presumably under directions of the President. Marbury filed in the Supreme-Court of the United States a petition praying a mandamus against Mr. Madison, Secretary of State, commanding him to deliver the commission. That court, speaking through Chief Justice Marshall, said:

“This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable'; it being almost impossible to show an appointment otherwise than by proving the -existence -of a commission; still the commission is not necessarily -the appointment; though conclusive evidence -of it.

“But at what stage does it amount to this conclusive evidence?

“The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him.

“Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete.

“The last act to be done by the President is the signature of the commission. Pie has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. Pie has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal, act; and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction.

“Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission.” Marbury v. Madison, 1 Cranch, 49.

The same court in Gardner v. The Collector, 6 Wallace, 499, said: “The only duty required of the President by the Constitution in regard to a bill which he approves is, that he shall sign it. Nothing more. The simple signing of his name at the appropriate place is the one act which the Constitution requires of him as the evidence of his approval, and upon his performance of this act the bill becomes a law.”

Again that court in Seven Hickory v. Ellery, 103 U. S. 423, in considering a bill which had passed both houses of the Illinois Legislature under a Constitution exactly the same as sec. 15, art. 6, Constitution of 1874, so far as this question is concerned, speaking through Chief Justice Waite, said: “The bill becomes a law when signed. Everything done after that is with a view to preserving the evidence of its passage and approval/' And further on the court in that case said: “And it becomes a law at the time when the event happens which is to give it validity.”

It has been urged that the appointment and commission of an officer by the President is not analogous to the act of a President (or Governor) in approving a bill. But the authorities above quoted show that the Supreme Court of the United States has treated them as exactly of the same nature. The analogy between the completion of an appointment by the signature of the President to the commission, thus making it irrevocable, and the conclusion of the consideration of a bill by signing it, thus making it law, appears to be perfect. Each is the last act prescribed in order to consummate the power which is being qxercised. And the opinion of the Supreme Court of the United States in Marbury v. Madison, written by the great Chief Justice, and re-enforced by the subsequent cases above quoted, should be, and is, of controlling weight in the determination of this question. As stated by Chief Justice Marshall, there must be a time when the power of the executive over the matter must cease; “and this power has been exercised when the last act required from the person possessing the power has been performed.” And, as stated by Chief Justice Waite in the Ellery case, “everything done after that is with a view to preserving the evidence of its passage and approval.” The act in the sequence of events necessary to make the bill at bar become a law was the signature of the Governor. “And upon his performance of this act the bill became a law;” and, as alleged in the petition, this act was performed by Acting Governor Moore “with the intent and for the purpose of approving the same in the manner provided by the Constitution to make said bill effective as law.”

The discretion of the executive may be exercised until this point has been reached. When this point is reached, and he signs the bill in the exercise of his discretion, his power over the bill has terminated, and it is no longer a bill but is a law, and is not subject to veto by himself or his successor.

Petitioner has strongly pressed upon the court two decisions of the Supreme Court of Illinois, People v. Hatch, 19 Ill. 283, and People v. McCullough, 210 Ill. 488, and they have been carefully considered.

The facts of the Hatch case were as follows: The Governor had through inadvertence and mistake signed a bill, and his approval of the bill had been announced to the house where it originated. Immediately discovering the mistake, lie sent a communication within thirty minutes notifying it of the mistake. He completed a veto message, which was partly written at the time he inadvertently placed his signature to the bill, and at once sent if in. In view of the radical difference in the facts of that case and the case at bar, what may have been said by the court there could have but little bearing in a case where it is alleged that the signing' of the bill was “with the intent and for the purpose of approving the same in the manner provided by the Constitution to make said bill effective as law.”

In the McCullough case a bill was approved and signed by Governor Yates on the 12th of May, 1901. On the 13th of May the vetoed bill was filed in the office of the Secretary of State with the approval erased, and accompanied by a veto message. It was contended that early on the morning of tlie 13th, before vetoing the bill, it had been filed in the Secretary’- of State’s office with the Governor’s approval thereon, and that thereafter, on the same day, the Governor withdrew the bill from the office of the Secretary of State, erased his signature, and refiled it with the Secretary of State vetoed. The gist of the decision is as follows: “It is not the mere signing of a bill by the Governor within the time fixed by the Constitution that gives it vitality. He must approve it as well as sign it, and the approval must come before signing. The signing is only required as an evidence of the approval. We see no reason why, if the bill in the case at bar was signed by mistake and without approval by the Governor before it left his possession, and while it was still under his control, he could not erase or cancel the words of approval at any time before it passed beyond his control. We are, however, of the opinion that if, in the' case at bar, the Governor himself, or through any one of his secretaries or clerks, deposited this bill in the office of the Secretary of State, with his approval indorsed upon it and signed bv bimself, it thereby passed beyond his control, and he had no power thereafter to take the bill from the office of the Secretary of State, and veto it and return it to the Secretary of State’s office, accompanied by his veto.”

The court turns the validity of the bill upon the question of control, more than upon the question of approval. It seems sounder reason, however, to turn the question upon the intention of approval by the Governor, rather than upon the less important act of the Governor or his subordinate in handing the bill over to another official. The Illinois courts have reasoned as if the approval of a bill was like the signing and delivery of a deed. The same argument was made in Marbury v. Madison. The Chief Justice questioned the correctness of the analogy, but assumed that it was correct, for the sake of argument, and answered it as follows: “If, then, the act of delivery be necessary to give validity to the commission, it has been delivered when .executed and given to the Secretary for the purpose of being sealed, recorded and transmitted to the party.” If that were applied to the facts here, it would not help the position of the petitioner.

But it is not profitable to pursue the point further. The court is convinced that it is not a question of the physical control of the bill, but the question is, as is well stated in People v. McCullough, supra, that “it is not the mere signing of a bill by the Governor within the time fixed by the Constitution that gives it vitality. He must approve it as well as sign it, and the approval must come before signing. The signing is only required as an evidence of the approval.” When, in token of approval, he signs it, intending it to become a law, then it has become a law, and that is the end of his power over it.

It has been forcibly argued that each house of the General Assembly may reconsider bills acted upon by it, and the judiciary may grant rehearings and new trials, and reconsider decisions rendered by it, and -that the same privilege should be accorded to the Executive, the other co-ordinate department of the government. But all these powers must be exercised within the limits prescribed by law. No department can proceed acr cording to its own untrammeled will, but must move according to fixed and determined rules of law regulating the duties- of each and the manner of the performance of such duties.

The houses of the General Assembly may, under the rules fixed and determined by them, allow a bill to be reconsidered, and individual members may change their minds upon the merits of the bill, and vote according to their change. But when the houses have exhausted this power of reconsideration, and the bill has passed the point where the law allows it to be reconsidered, then it is final, and it is not .within the power of the General Assembly to recall it.

Courts may reconsider their decisions within fixed times, and judges may change their minds and render other decisions fitting to the change of opinion. But when the time for the reconsideration of a case has passed, and the term expired over which the court may control its judgment, then its action has become final, and can not be changed. For instance, this court may grant rehearings where petitions are filed within fifteen days, and it may recall any judgment rendered during a .term; but when that time has expired, the power of the court over its judgment is gone. Then the judgment is irrevocable, either by the judges who made it or by those who may sit in their seats.

And so it is with the Executive. He may, within the time prescribed by the Constitution, consider and reconsider a measure; he may change and rechange his mind upon the merits of a bill before him. But when he has exercised his power over it, either by approval or veto, then'the action is final and irrevocable, and, like the judgment of a court, when the time for reconsideration has passed, it is binding and unchangeable by the judge rendering it or any successor in office. The law has given him in the one case five days, and in the other twenty days, for consideration; and when that consideration has been given, when that discretion has been exercised, when the last act has been performed, and the bill is signed, then the bill is a law, and no more subject to veto than any other valid law.

Petition is denied.