City of Detroit v. Chapin , 37 L.R.A. 391 ( 1895 )

Hooker, J.

This case involves the question of the validity of an act of the legislature passed previous to the last five days of the session, and approved by the governor after the adjournment of the legislature. Its determination depends on a construction of section 14, art. 4, of the Constitution, which reads as follows:

“Every bill and concurrent resolution, except of adjournment, passed by the legislature, shall be presented to the governor before it becomes a law. 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 shall enter the objections at large upon their journal, and reconsider it. On such reconsideration, if two-thirds of the members elected agree to pass the bill, it shall be sent with the objections to the other house, by which it shall be reconsidered. If approved by two-thirds of the members elected to that house, it shall become a law. In such case the vote of both houses shall be determined by yeas and nays; and the names of the members voting for and against the bill shall be entered on the journals of each house respectively. If any bill be not returned by the governor within ten days, Sundays excepted, after it has been presented to him, the same shall become a law, in like manner as if he had signed it, unless the legislature, by their adjournment, prevent its return; in which case it shall not become a law. The governor may approve, sign, and file in the office of the secretary of state, within five days after the adjournment of the legislature, any act passed during the last five days of the session; and the same shall become a law.”

This section, with the exception of the five-day provision, was a part of the former Constitution.

. It is contended on behalf of the respondent that, under the previous Constitution, the governor might lawfully sign a bill at any time within 10 days after its passage; that his neglect to return the bill, with reasons for not signing, within 10 days, was equivalent to a signature, unless the legislature, by adjourning, prevented such return, in which case it would not become a law, unless he signed it within 10 days. It will be noticed that the Constitution nowhere fixes a time within which the governor shall sign bills, except as it may be inferred to be 10 days, from the provision that an act shall become a law without signature if 10 days after its passage shall expire during the session. If this inference is not a legitimate one, the conclusion is irresistible that, under the former Constitution, the governor had unlimited time after adjournment within which to sign bills, or that he must sign during the session. If we were construing the provision of the earlier Constitution, we should therefore feel justified in concluding that the governor might sign a bill within 10 days after its passage, though the legislature should have meantime adjourned. We are aware that there are weighty authorities against this construction, notably the carefully considered and elaborately reasoned case of Fowler v. Peirce, 2 Cal. 165, which appears to have been the earliest case involving the question. On the other hand, many cases have taken a different view of the subject. People v. Bowen, 30 Barb. 24, 21 N. Y. 517; Lankford v. County Commissioners, 73 Md. 105; State v. Fagan, 22 La. Ann. 545; State v. Supervisors of Coahoma Co., 64 Miss. 365; Solomon v. Commissioners of Cartersville, 41 Ga. 157. The Georgia case, however, appears to be based upon the fact of usage. To what extent, if at all, this provision was given a construction by usage previous to 1850, we are not advised. The signing of bills after adjournment has been practiced since.

The constitutional convention which adopted our present Constitution added the last provision to the section as it previously stood, and it is contended that this provision indicates a construction of the former provision by that convention in accordance with the California decision, though that case had not then been decided. This addition is said to indicate an intention to enlarge the power of The governor, by authorizing the signature, within five days after adjournment, of bills passed during the last five days of the session; and it is forcefully argued that the last words of the sentence, “and the same shall become a law,” imply that this provision was necessary to give effect to an act not signed or • returned during the session. To the claim that the convention added this provision for the purpose of shortening the period for signature after adjournment to five days, it is answered that no good reason is assigned therefor, and that, had that been the design, unambiguous language could easily have been found to- express such idea; and, furthermore, that the addition of the words quoted is entirely without significance if that view is to be taken.

If, under the provision as previously existing, a doubt was entertained of the validity of acts signed after adjournment, the convention might well think it best to set the question at rest. In such case, it is apparent that members would be likely to entertain different opinions about the power of the governor to sign bills after the adjournment of the legislature, as well as the time to be allowed for that purpose. Some may have thought that the governor’s power was unlimited, and that acts might become laws' by virtue of his signature appended at any time after adjournment. Others may have thought the time to be limited to 10 days by the language of the Constitution relating to the return of bills with reasons. Others still may have taken the ground that bills must be signed before adjournment to give them effect. Apparently, the only light attainable was the common practice. The presidents made a practice of signing during the session, we are told. On the other hand, the decision in Georgia and that in New York show that it was customary for the governors, in those States at least, to sign after adjournment. As our Constitution followed that of New York literally so far as this provision was concerned, we may reasonably suppose that the practice under it recognized and followed that common in New York. When the subject arose in convention, all may have admitted the necessity of time for signing bills after adjournment. Some may have thought the power existed, though, in view of the fact that it was questioned, have been willing to let the Constitution show it, and to permit a limitation upon what they believed to be the existing rule, as to bills passed during the last five days, to set the question at rest. On the other hand, some may have been unwilling to concede anything unless all bills were to be signed within five days after adjournment. We think, therefore, that it is not clear that the convention had settled convictions upon the question of the governor’s power, or that the added sentence was necessarily considered an enlargement. Doubtless, it was by some, while others, believing that it was unnecessary as an extension, may have favored the provision as a limitation, or a compromise which should set the matter at rest.

We discover no reason based upon public policy for saying that the governor should not be permitted to sign bills after the houses adjourn. The strongest argument against it is found in the California case, and this rests upon the proposition that the governor, when approving an act, exercises a legislative function, which, if necessary, may be admitted without also admitting that he must sign before the two houses adjourn. The practice of the presidents has some force, but it is, at best, only negative proof of a construction, and may have been continued if it did not originate from abundant caution to avoid possible consequences. The fact that President Lincoln departed from it even in one instance is of great weight, as it shows that construction to have been disregarded by a president whose conception of the powers of the different branches of government was as broad, and his observation of them as conscientious, as that of any of his predecessors; and the action of Congress in re-enacting the law by way of amendment may have been a precautionary measure, or merely to prevent expensive litigation by eliminating the question. Moreover, the Supreme Court of the United States, in Seven Hickory v. Ellery, 103 U. S. 423, recognizes the rule as laid down in People v. Bowen, supra; and, while the Constitution there under discussion differed somewhat from the Constitution óf New York and that of the United States, the case was apparently considered to be within the principle of the New York, Maryland, and. Georgia cases, which, therefore, may be said to have been approved. Its logical effect is to break the force of the presidential precedent upon which so much reliance is placed.

The last provision of the section, if necessary to confer ■a power to sign after adjournment, applies only to the bills passed within the last five days; but if not necessary to confer a power, because already existing, it, must then be a limitation; and the question here is whether there is a necessary implication that the previously existing power was intended to be removed. To an extent, we think, there is. Clearly, it precludes signing bills passed during the last five days of the session, after the expiration of the period of five days after the adjournment. It is silent about the power as to other bills, because, under existing provisions, the signature was restricted to the same period. No consideration of public policy is urged why the governor should not sign bills after adjournment. The effect of relator’s construction would be to give a bill passed the fifth day before adjournment the full period of 10 days within which it might be signed, while bills passed one day earlier would have but five. No reason is suggested for such a discrimination, and to our minds it is more reasonable that the convention should have supposed that all bills were to be signed within 10 days after passage, except those passed during the last five days, which were to be disposed of within five days after adjournment.

“ The cardinal rule of construction concerning language is to apply to it that meaning which it would naturally convey to the popular mind, in all cases where the propriety of such construction is not negatived by some settled rule of law.” People v. Dean, 14 Mich. 406, 417.

“Constitutions are to be construed as the people construed them in their adoption, if possible; and the public history of the times should be consulted, and should have weight in arriving at that construction.” Bay City v. State Treasurer, 23 Mich. 499.

“ Constitutions, as well as statutes, are to be construed in the light of previous history and surrounding circumstances. The language is not to be measured by mathematical rules merely, but is subject, in the nature of things, to numerous implied exceptions or qualifications.” Kennedy v. Gies, 25 Mich. 83.

“Constitutional provisions must be construed with reference to each other when relating to the same subject-matter.” Root v. Mayor, etc., 3 Mich. 433; Dullam v. Willson, 53 Mich. 392.

“The framers of a Constitution are presumed to have a knowledge of existing laws, and to act in reference to that knowledge.” People v. May, 3 Mich. 598, 610.

We are cited to instances where this construction has been given to this section by the governors, and there are numerous acts whose validity depends on the question involved here. If the question were more doubtful than it is, we might properly consider the force of a practical construction of co-ordinate branches of government, acquiesced in by the general public for a long period. In commenting upon this subject, Mr. Justice Cooley says:

“ Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind.” Cooley, Const. Lim. (6th Ed.) pp. 83, 84.

He supports it by numerous cases. See, also, Attorney General v. Glaser, 102 Mich. 409; Hart v. McElroy, 72 Mich. 453; People v. Maynard, 15 Mich. 470; Hovey v. State, 119 Ind. 386; Biggs v. McBride, 17 Or. 640; Castro v. De Uriarte, 16 Fed. 93; Cooley, Const. Lim. (6th Ed.) pp. 84-86, and notes; Stuart v. Laird, 1 Cranch, 299.

Our attention is called to instances where the governors of this State have signed bills under similar circumstances, one as early as 1873, and many since.

Another question needs notice, and this calls for a brief statement of facts. The act in question was “An act to authorize the city of Detroit to take private property for the use and benefit of the public,” approved June 4, 1895. Act No. 467, Local Acts 1895. On August 28, 1895, the proceedings in this case were commenced under a former statute. It is now contended that this act terminated the pending proceedings, and the court so held. This, we think, was right. There was no saving clause, and its effect was to repeal the existing law. See Key v. Goodwin, 4 Moore & P. 341; Stoever v. Immell, 1 Watts, 258; Butler v. Palmer, 1 Hill, 324; Hampton v. Com., 19 Pa. St. 329; Sedg. Stat. & Const. Law (2d Ed.), 112. The act is materially different from the one repealed by it, and therefore does not fall within the decision in Moore v. Township of Kenockee, 75 Mich. 332, which was exceptional, and in which the rule above stated is recognized. Id. 340. These proceedings were not pending when the law was passed, being commenced but three days before it took effect.

We conclude, therefore, that the action of the governor was within his constitutional power, and that the proceedings cannot be prosecuted under the previous statute.

(March 24, 1896.)

The writ is denied.

McGrath, C. J., Long and Montgomery, JJ., concurred with Hooker, J.