State ex rel. Mass Transportation Authority v. Indiana Revenue Board

242 N.E.2d 642, 144 Ind. App. 63, 1968 Ind. App. LEXIS 429

• Court: Indiana Court of Appeals
• Decided: December 31, 1968
• Docket: No. 767-A-39
• Status: Published

Opinions

ORIGINAL ACTION

Cooper, J.

From the record now before us, it appears that the plaintiff filed a petition in the Superior Court of Marion County, Room No. 3, to mandate the defendants to comply with House Enrolled Act No. 1818, passed by the General Assembly during its 1967 Session. Specifically the petition prayed that:

“An order issued against Defendants, mandating them to administer and enforce the inheritance tax laws of Indiana as they now exist including the Acts of the General Assembly of Indiana, 1931, Chapter 75, Section 36, as amended by the 1967 General Assembly.

“Plaintiff further prays that an order issue against Defendants, enjoining them from continuing to apply the taxes levied and collected under the inheritance tax law of Indiana according to the Acts of the General Assembly of Indiana, 1931, Chapter 75, Section 36, as it existed prior to its amendment by the 1967 Indiana General Assembly.”

The trial judge granted a temporary restraining order. The Attorney General on behalf of the defendants, prior to the hearing date set by the Superior Court of Marion County, filed a petition to transfer the cause to this Court pursuant^ to Ch. 7, of the Acts of 1965, (2nd Spec. Sess.). After a hearing by this Court, sitting In Banc, on the petition to transfer, we assumed jurisdiction and transferred the cause to this Court and dissolved the existing restraining order.

The Attorney General, on behalf of the defendants, filed a demurrer to the complaint on the ground that it failed to state a cause of action. Subsequently we overruled the demurrer. Thereafter, both parties filed separate motions for judgment on the pleadings.

The sole question now before us to be decided is whether House Enrolled Act No. 1818 became the law of the State under the following circumstances. ■

House Enrolled Act No. 1818 amended Acts of 1931, Ch. 75, as amended, and Acts of 1947, Ch. 10, and provided for the distribution of inheritance tax funds on the basis of ten percent (10%) to the State and ninety percent (90%) to the Mass Transportation Authority of Marion County, the plaintiff herein.

If the bill became law, the relief prayed for in the petition should be granted. If it did not become law, judgment should be entered for the defendants.

The facts in this cause are undisputed and without conflict. The bill in question was duly passed in both Houses of the 95th General Assembly; duly signed by the respective officials of both the Senate and the House and presented to the Governor, with other bills, whose office gave a receipt therefor. This presentment was made on the last day of the 1967 Legislative session. The Governor did not approve the bill by signing it and sending it to the office of the Secretary of State, nor did he send it to the office of the Secretary of State unsigned, nor did he return it with his objections thereto, as provided in Article 5, Section 14, of the Constitution of Indiana. Therefore, the bill was neither published nor distributed to the Clerks of the Circuit Courts of the several counties of the State by the Secretary of State with other bills.

It is agreed by all concerned that the bill is still in the Governor’s office. Plaintiff contends that this bill became law after five days since it contained an emergency clause, pursuant to Article 5, Section 14 of the Constitution of Indiana, and the defendants contend that it did not, citing the last sentence of Article 5, Section 14.

Article 5, Section 14 of the Constitution of the State of Indiana reads as follows:

“§ 14. Bills signed or vetoed. — Every bill which shall have passed the General Assembly, shall be presented to the Governor; if he approve, 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, Sundays 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 after such adjournment shall file such bill, with his objections thereto, in the office of Secretary of State; who shall lay the same before the General Assembly at its next session, in like manner as if it had been returned by the Governor. But no bill shall be presented to the Governor, within two days next previous to the final adjournment of the General Assembly.”

The citizens of our State generally recognize, and our Courts judicially know, that the legislative and the executive branches of our state government have, for a period of years, disregarded the clear mandate of the Constitution which is the organic law of this State, concerning how bills passed by the General Assembly are to become law. We feel that the time has come for the judiciary to recognize and denounce this manifest departure from the mandates given to the legislative and executive branches of our government by our Constitution.

We judicially know that the Constitution of Indiana, in Article 5, Section 14, provides:

“no bill shall be presented to the Governor within two days next previous to the final adjournment of the General Assembly.”

We also judicially know that the common practice has flourished of presenting important and vital bills to the Governor within the last two days of the session, contrary to the constitutional prohibition, and that several of the recent governors have accepted such bills within the last two days of such sessions and in most cases acted upon such bills in the method provided by the constitution, and further, that bills have been presented after the legislature should have adjourned sine die within the term required by the constitution of the State of Indiana.

Likewise, we also judicially know that for years, the executive branch of our state government has illegally and unlawfully pocket vetoed various bills which have been duly enacted by the legislature. For example, the legislative journals show that in the year 1965, there were 19 House and 10 Senate bills pocket vetoed; that in 1967, there were 14 House and 19 Senate bills pocket vetoed. There is no authority, either from the Constitution, or from a Supreme Court decision interpreting our Constitution, which gives the Governor the power to pocket veto legislation which has been enacted by the General Assembly.

We, further, judicially know that one of the greatest students of constitutional law that was ever privileged to sit on the Supreme Court of Indiana, the late Justice Gilkison, questioned the authority of the legislature to stop the clocks in the respective chambers of each house on the last day of each session, in his dissenting opinion in the case of State, ex rel. Cline v. Schricker (1949), 228 Ind. 41, 88 N. E. 547, at page 49.

Thomas Paine in 1791, defined and explained a constitution of a republic thus:

“A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and whatever it cannot be produced in visible form, there is none. A constitution is a thing antecedent to government, and a government is only a creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government. It is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the duration of parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and, in fine, everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound. A constitution, therefore, is to a government, what the laws made afterwards by that government are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made; and the government is in like manner governed by the constitution.”

These same principles also apply today to our own state Constitution. When we, as Judges of an appeal court, have before us a case such as this, in which it appears that those in power, after having sworn to uphold and defend the Constitution have openly and flagrantly violated its provisions, we must not ignore such illegal actions and remain silent, for to do so would thereby condone such behavior, and we would be betraying the citizens whose rights and privileges under the Constitution we have sworn to protect.

If the Courts as the guardians of the rights guaranteed to the people by the constitution should ever relax their vigilance in enforcing the provisions of the Constitution and yield to the pressures of any groups having special interests, including officeholders in the legislative and executive branches of government, our present system of constitutional government would collapse.

In the volume, Constitutional Limitation, by Cooley, 8th Edition, Volume 1, page 355, Cooley makes the following statement concerning state constitutions:

“That instrument has been aptly termed a legislative act by the people themselves in their soverign capacity, and is therefore the paramount law.”

On page 81 of the same volume, we find the following statement:

“By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.”

Article 5, Section 14 of the Constitution of Indiana prescribes the duties of a Governor relating to all bills passed by the General Assembly that are received by him, regardless of when so received. It is to be noted that the Constitution does not prohibit the Governor from acting upon any bill received by him during the session. It necessarily follows that after the Governor receives any bill during the session, he must act upon it in one of the ways provided for by the Constitution, as hereinabove set forth.

The Constitution expressly states that if adjournment shall prevent the bill’s return to the General Assembly, “it shall be a law unless the Governor, within five days next after such adjournment, shall file such bill, with his objections thereto, in the office of the Secretary of State.”

It was stated in Opinions of the Attorney General, 1935, at pages 87 and 88 as follows:

“III.

“The Governor has five days next following the final adjournment of the General Assembly within which to consider and act upon enrolled bills presented to him on Monday, March 11, 1935. This is in accordance with the provisions of section 14 of Article 5 of the Constitution of the State of Indiana.

“IV.

“Enrolled bills presented to and duly received and receipted for by the Governor on either Saturday, March 9, 1935, Monday, March 11, 1935, will become a law without the signature of the Governor unless the Governor shall sign the same or refuse to sign and file such enrolled bill with his objections thereto with the Secretary of State within the five days next after the final adjournment of the Seventy ninth session of the General Assembly.” (Author’s note: A review of the legislative journal for 1935 shows that March 11, 1935, was the last day of the session.)

It has been held also that where an act is not approved by the Governor and the same takes effect by lapse of time by reason of his failure to return the same with his objections thereto, such Act, when it contains an emergency clause, as does House Enrolled Act No. 1818, the bill we are now considering will go into effect immediately upon the expiration of time given by the Constitution for the Governor to consider and return bills. Constitution of the State of Indiana, Article 4, Section 28, State, ex rel White v. Grant Superior Court et al. (1930), 202 Ind. 197, 211, 172 N. E. 897; Stalcup et al. v. Dixon, 136 Ind. 9, 35 N. E. 987; State of Indiana ex rel. Colbert v. Wheeler, 172 Ind. 578, 89 N. E. 1, 19 Ann. Cas. 834; Shutt v. The State of Indiana ex rel. Cain, 173 Ind. 689, 89 N. E. 6.

Our Supreme Court has, in the case of State ex rel. Grant, supra, at page 210, held that the last sentence of Article 5, Section 14, is an inhibition only on the legislature and is in no way binding upon the Governor. At no place in the Constitution is the Governor given the authority or power to pocket veto any bill or enactment of the General Assembly presented to him during a session, regardless of the time when it is presented to him.

In interpreting Article 5, Section 14 of our State Constitution, our Supreme Court has expressly stated in the case of Tarlton v. Peggs (1862), 18 Ind. 24, 25, the following:

“This provision was intended to prevent the possibility of the Governor withholding a bill and thus preventing its becoming a law" (our emphasis).

Also, in the case of State ex rel. White v. Grant Superior Court et al. (1930), 202 Ind. 197, 211, we find the following statement:

“The proceedings by the General Assembly and the actions of the Governor necessary for the passage of a bill and to make it a law are stated in the Constitution. The necessary procedure, as thus stated by the organic law, may not be enlarged, curtailed, changed or modified by any governmental authority (our emphasis).

The Court went on to state further on page 211 of the opinion as follows:

“This bill, after its passage and enrollment and presentation to the Governor, was not delivered by the Secretary of State to the state printer, and it was not printed under authority together with the other laws passed by the General Assembly at its seventy-sixth session. This bill had in it an emergency clause to the effect that ‘the same shall thereafter be in force from and after its passage,’ etc. The Constitution by Art. 4, § 28, provides that where an emergency shall be declared in the preamble or in the body of the law, it is unnecessary for it to become a law that it be published and circulated in the several counties of the state by authority. This section has been plainly interpreted by the court that a bill will become a law at the expiration of the time given to the Governor by the Constitution to file the bill with the Secretary of State, together with his (the Governor’s) objections thereon, where the bill provides that an emergency exists for it to become effective upon its passage. State ex rel. v. Wheeler (1909), 172 Ind. 578, 588, 89 N. E. 1, 19 Ann. Cas. 834; Shutt v. State ex rel. (1909), 173 Ind. 689, 89 N. E. 6.”

Under the principles enunciated in the case of State of Indiana ex rel. Colbert v. Wheeler (1909), 172 Ind. 578, 89 N. E. 1, this Court, in determining whether or not the bill became law, had the duty to examine all sources of information made available to us by the parties which would clarify the factual situation concerning this bill. From this information, we find that the Governor accepted House Enrolled Act No. 1818 together with several other House Enrolled Acts which became law with the Governor’s signature on the last day of the session. It is, therefore, clearly established that the Governor did, in fact, accept this group of House Enrolled Acts, including No. 1818, the one in question.

The Constitution does not give the Governor the authority to conditionally accept an act at any time. Therefore, we must hold that House Enrolled Bill No. 1818, which had an emergency clause, which was properly authenticated by the presiding officers of both the House and Senate, and was accepted by the Governor, who failed to file the same within five days with the Secretary of State together with his objections thereto, became the law of the State of Indiana without the Governor’s signature. In support of the foregoing statement, see both the majority and the dissenting opinions in the case of Hendricks, Secry., etc. v. State ex rel. Northwest Indiana Crime Commission, Inc., et al. (1946), 245 Ind. 43, 196 N. E. 2d 66.

When an Act is received by the Governor, but not signed by him, nor vetoed and returned to the House in which it originated, such Act, when it contains an emergency clause, such as the one we are now considering, will go into effect immediately after the lapse of thé five day period provided for by the Constitution and become the law, unless the Governor shall file such bill, with his objections thereto, in the office of the Secretary of State.

We are of the expressed view that what we have stated heretofore should have no retrospective effect. To do so, would produce an uncertainty concerning the fundamental law as it has existed in the past. Such uncertainty would no doubt result in utter chaos and confusion as to the validity and effect of past legislation. As a result, we believe that the holding of the case at bar should be applicable to the 95th session of the General Assembly and all sessions thereafter. In re Todd (1934), 208 Ind. 168, 193 N. E. 865; Swank et al. v. Tyndall et al. (1947), 226 Ind. 204, 78 N. E. 2d 535; Johnson v. New Jersey (1966), 384 U.S. 718, 16 L. Ed. 2d 882, 86 S. Ct. 1772.

The plaintiff’s motion for judgment is granted and the defendants’ motion for judgment is denied.

Judgment is entered for the plaintiff with costs against the defendants.

Carson, C.J., Cook, P.J., Pfaff and Smith, J.J., concur.

Fauleoner, J., dissents with opinion in which Bierly and Prime, J.J., concur.

Note: Judge Cook participated in the argument and the conferences thereafter and concurred in the majority opinion. His untimely death occurred before the final draft of this opinion was completed and delivered to the Clerk’s office.

1 . On December 31, 1968, the date of the judgment in this case, the named defendants were the then incumbent officeholders and were named in their capacities as such officeholders, viz: Roger D. Branigin, as a Member of the Indiana Revenue Board; John P. Gallagher, Auditor of the State of Indiana, and as a Member of the Indiana Revenue Board; William L. Fortune, Commissioner of the Indiana Department of State Revenue; and Larry P. Mohr and Herbert C. Holmes, as Members of the State Board of Tax Commissioners of Indiana; and T. Michael Smith, as Inheritance Tax Administrator. This court takes judicial notice that these named defendants are no longer in office, and the court, on its own motion has substituted the present incumbents in office as the nominal defendants.