Woessner v. Bullock

93 N.E. 1057, 176 Ind. 166, 1911 Ind. LEXIS 106

• Court: Indiana Supreme Court
• Decided: February 23, 1911
• Docket: No. 21,783
• Status: Published

Opinions

Morris, J.

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 by the Secretary of State, neither was it called for by the General Assembly, nor was any action taken on it; that the General Assembly met in regular session January 7, 1909, and on that day the Secretary of State laid said bill before it, and on February 11, 1909, it was passed over the Governor’s objections thereto.

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.

1. But one question is involved in this appeal: If the act of 1909, supra,, was passed by the General Assembly in accordance with the provisions of article 5, §14, of our Constitution, the circuit court erred; otherwise, the judgment should be affirmed.

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 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. ’ ’

2. 1. 3. 1. The phrase “at its next session” means the first session following, whether it be a regular or special one. The provisions of our Constitution, with reference to regular and special sessions are found in article 4, §9. The power of the General Assembly to legislate on any subject when convened in special session is not limited by the Constitution. Constitution, Art. 4, §9; Cooley, Const. Lim. (7th ed.) 222; Morford v. Unger (1859), 8 Iowa 82; People, ex rel., v. Rice (1892), 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836. Had it been intended by the framers of the Constitution to limit to regular sessions the consideration of bills disapproved by the Governor, we should, naturally, expect such intention to be expressed by providing for such consideration by the “next regular session,” or by the “next General Assembly,” rather than by the “next session.” People, ex rel., v. Rice, supra. If the meaning of a constitutional provision is doubtful, courts may examine the proceedings of the convention that framed the provision, to aid in its interpretation. A consideration of pages 1447 and 1448, Vol. 2, Debates Indiana Constitutional Convention, reveals the fact that the members of the convention understood that the words “next session,” meant either a called or regular one. Counsel for appellant do not assert that this construction is erroneous, but contend that under the facts in this cause, when the Secretary of State failed to lay the bill, with the Governor’s objections, before the General Assembly at its session of 1908, it became a law; that the legislature is under no duty to pursue its bills, in order to pass them over the Governor’s objections; that the Governor is under a duty to follow up such bills, in order to defeat them; that in doing so, he acts through the Secretary of State, who, for this purpose, is made his representative by the Constitution, and this bill, that passed both houses in the General Assembly of 1907, became a law when the special session adjourned, without the Secretary of State’s having laid the bill before it, regardless of any action thereon by the General Assembly of 1909.

4. 5. This contention cannot prevail. When the Governor, within five days after the adjournment of the General Assembly, filed the bill, with his objections thereto, in the office of the Secretary of State, he thereby prevented the bill from becoming a law, unless, at the next session of the General Assembly, on reconsideration, it should have been approved, notwithstanding the Governor’s objections, by a majority of the members of each house. The Constitution requires the concurring acts of the two houses of the Assembly, and of the Governor in approving, or in determining to withhold his approval, in the manner pointed out. When the Governor files such bill in the office of the Secretary of State his power over it ends. Tarlton v. Peggs (1862), 18 Ind. 24; People, ex rel., v. Devlin (1865), 33 N. Y. 269, 88 Am. Dec. 377; Powell v. Hays (1907), 83 Ark. 448, 104 S. W. 177; State v. Whisner (1886), 35 Kan. 271, 10 Pac. 852; People, ex rel., v. McCullough (1904), 210 Ill. 488, 71 N. E. 602; 36 Cyc. 962. Nor can it justly be said that the Secretary of State is, in any manner, the agent or representative of the Governor. Pie is, by the fundamental law, required to keep and preserve the manuscripts containing the enrolled acts, etc., of the General Assembly. If he represents any department of the Government, it would be more logical to treat him as the representative of the General Assembly, because he is the custodian of its enactments. Tarlton v. Peggs, supra.

6. Counsel for appellant Woessner say that “it is unreasonable to assume that, in any possible case, the framers of the Constitution intended to place it in the power of the Governor, in collusion with the Secretary of State, to defeat legislation as completely as if the veto were absolute. No fault can justly be found with this contention, but the facts here do not disclose such a condition. If there were a collusive attempt on the part of the Governor and the Secretary of State to defeat action by the General Assembly on a bill, it cannot be doubted that the General Assembly could find a way to procure the bill, and the objections of the Governor thereto, from the office of the Secretary of State. Constitution, Art. 4, §16, and Art. 6, §7; §9193 Burns 1908, §5591 R. S. 1881; State v. Junkin (1907), 79 Neb. 532, 113 N. W. 256. There is nothing suggested by the facts of this case to warrant the slightest criticism of the Governor. The Constitution clothes him with certain power over legislation, and in no respect did he transcend that power. Nor is there anything in this ease that would warrant criticism of the Secretary of State in much greater measure than should be meted out to the General Assembly. The acts of 1907 were published April 10, 1907. They did not contain the act in controversy. The only inference to be legitimately drawn from its absence was its disapproval by the Governor, and its filing with the Secretary of State for consideration at the next session. In this particular instance, the members of the General Assembly at the sessions of 1907 and 1908 were the same, except as to those who had died or resigned in the interim. Even appellant Woessner was bound to know the condition of this bill. The reasonable presumption to indulge is that the Secretary of State and the members of the General Assembly either forgot about the condition of this bill, or misconstrued the constitutional provision. The sheriffs of the State had a special interest in this bill. Had any one of them, during the 1908 session, suggested the matter either to the Secretary of State, or to the members of the General Assembly, it is to be presumed that the bill would have been laid before the General Assembly and considered.

7. It is also suggested by appellant Woessner's counsel, that the practical disadvantages to the public that might follow the sustaining of appellee's theory, should be considered. It is sufficient to say that constitutions import the utmost discrimination in the use of language, and courts are not warranted in substituting for the clear Ianguage of the instrument their own notions of what it should have been. Greencastle Tp., etc., v. Blade (1854), 5 Ind. 557; Cooley, Const. Lim. (7th ed.) 93.

8. It is further contended by said appellant that inasmuch as the enrolled act in the office of the Secretary of State shows on its face that it was duly passed by both houses, and properly authenticated by the presiding officers of each, the court will not go back of the act, as thus appearing, but will conclusively presume that all necessary steps were taken; that the demurrer only admits the truth of the facts alleged in the complaint that were properly pleaded; that the allegation of the complaint, that the bill was vetoed by the Governor in 1907, and not again voted on in the session of 1908, is incapable of legal proof, and hence not properly pleaded; that the complaint stands therefore, as if it merely alleged that this bill was passed in 1907, and was presented to the Governor. This contention cannot prevail. The enrolled bill, on file in the office of the Secretary of State, with the acts of 1909, is signed, not by the presiding officers of the General Assembly of 1909, but by the officers of the assembly of 1907, and on its face shows it was not signed by the Governor, but was passed, notwithstanding the objections of the executive, by each house, in 1909, which fact is authenticated by the proper presiding officers of each house at that session. This court knows, regardless of the allegations of the complaint, that this bill was passed by both houses of the General Assembly in 1907, and presented to the Governor, who, within the prescribed time, filed it in the office of the Secretary of State, with his objections thereto; that it was not acted on by the General Assembly at its next session held in September, 1908, but was considered by the General Assembly of 1909, and passed by each house thereof, over the objections of the Governor. State, ex rel., v. Wheeler (1909), 172 Ind. 578; Evans v. Browne (1869), 30 Ind. 514, 95 Am. Dec. 710.

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.