State v. Howell , 26 Nev. 93 ( 1901 )

The facts sufficiently appear in the opinion. The relator by this action seeks to compel the respondent, as secretary of state, to furnish him a duly certified copy of that certain act entitled "An act to regulate the payment of losses sustained by holders of full paid up fire insurance policies," deposited and filed in the respondent's office on the 12th day of February, 1901, and to further compel respondent to include said act in the volume containing the published laws enacted by the twentieth session of the legislature of this state.

The controlling facts set up in the petition, and which are admitted to be true, are that the above-entitled act was regularly passed by the legislature of this state at its nineteenth session, regularly signed by the proper officers of the two houses thereof, and presented to the governor of the state at a time less than five days before the final adjournment of said session; that within ten days after the adjournment the governor filed said act, with his objections thereto, in the office of the respondent; that thereafter and in due time the respondent regularly laid said act, together with the objections of the governor, before the twentieth session of the legislature of Nevada, and the same was regularly reconsidered and passed by a vote of more than two-thirds of the members elected to each house thereof, notwithstanding the governor's objections, and was filed in the office of the respondent on the 12th day of February, 1901; that the act when so filed was not signed, and has not since been signed, by either of the presiding officers of the senate or assembly of the twentieth session of the legislature, nor by the secretary of the senate or clerk of the assembly of said session.

The respondent contends that the act is not a law without the attestation of the proper officers of the twentieth session of the legislature, and bases his refusal to comply with relator's demands upon that fact. The question presented by this contention is the only one to be considered, and it must be determined by the construction placed upon Sections 18 and 35 of Art. IV of our constitution. While the question is a new one, and has conic before this court in this proceeding for the first time, yet the construction of Section 18 has been repeatedly before this court. In all the cases involving a construction of said Section 18 it has been invariably held that the last clause of the section, requiring the signatures of the officers named therein, is mandatory, and that the enrolled bill so authenticated is the only and conclusive evidence that it has been legally enacted. (State v. Swift, 10 Nev. 176; State v. Rogers,10 Nev. 250; State v. Glenn, 18 Nev. 34,1 Pac. 186; State v. Nye, 23 Nev. 99,42 Pac. 866; State v. Beck, 25 Nev. 68.)

It is not necessary to discuss the reason of the rule, or quote from the opinions the reasons given. The question was exhaustively treated in State v. Swift,supra, in which the authorities from all sources were collected, analyzed, and explained, and approved or disapproved.

In State v. Glenn the rule laid down inState v. Swift was approved, and Justice Hawley, speaking for the court, declared that "the signing of the bill by the officers designated in the constitution is absolutely essential to its existence as a law."

So well settled is this rule in this state that the court as late as 1899, when asked to modify it in State v.Bed-, declined to make any modification, and upon full consideration declared that the great weight of the decided cases, considered with reference to the reasoning and argument, supported the rule. Shall we, then, apply the mandatory requirement of Section 18, relating to the attestation of bills, to acts which have been vetoed by the governor, and by the provision of said Section 35 are required to be laid before the next legislature for reconsideration, and have passed over his veto? This is the precise question.

Section 35 reads as follows: "Every bill which may have passed the legislature, shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which house shall cause such objections to be entered upon its journal, and proceed to reconsider it. If, after such reconsideration, it again pass both houses by yeas and nays by a vote of two-thirds of the members elected to each house, it shall become a law, notwithstanding the governor's objections. If any bill shall not be returned within five days after it shall have been presented to him (Sundays excepted) exclusive of the day on which he received it, the same shall be a law in like manner as if he had signed it, unless the legislature, by its final adjournment, prevents such return, in which case it shall be a law, unless the governor within ten days next after the adjournment (Sundays excepted) shall file such bill, with his objections thereto, in the office of the secretary of state, who shall lay the same before the legislature at its next session, in like manner as if it had been returned by the governor; and if the same shall receive the vote of two-thirds of the members elected to each branch of the legislature, upon a vote taken by the yeas and nays to be entered upon the journals of each house, it shall become a law."

It will be observed that Sections 18 and 35 are found in the same article — the article devoted to the legislative department of the state government — and, under the familiar and well-established rule, when construction is necessary should be read and construed together.

It is claimed by the relator that notwithstanding the mandatory requirements of Section 18, relating to the attestation by the officers of the respective houses as applied to bills which become laws with or without the governor's approval, such mandatory requirement can have no application to bills which are passed over the governor's objections at the next session of the legislature, for the reason that the provisions of Section 35 authorize the court to go to the journals of the respective houses for the evidence of the constitutional requirements of its enactment and existence as a valid law.

For the same reason and by the same logic it could be as well said that the requirement of Section 18, relating to the signatures of the proper officers to bills which are laws with the governor's approval, or without his approval by lapse of time, is not mandatory, and therefore not essential to the existence of the law, as Section 18 contains the provision that the "vote on every bill or joint resolution shall be taken by yeas and nays to be entered on the journals of each house, and a majority of all members elected to each house shall be necessary to pass every bill or joint resolution."

If we so hold, we place the framers of our constitution in the anomalous position of requiring acts passed by a mere constitutional majority to be attested by the signatures of the chief officers of the legislature, as the only and conclusive evidence of their enactment, and in the same article, treating of the same subject, permitting the existence of another act which meets the disapproval of a coordinate branch of the government, exercising a constitutional power over legislation, and which act must again be considered by the legislature, and receive more than a majority of the members elected to each branch thereof, in order to overcome such disapproval, to rest upon a record which may be, as pointed out by Justice Beatty in State v. Swift, so uncertain, inaccurate, and incomplete as to unsettle the entire statute law of the state.

The relator cites two cases decided by the Supreme Court of Indiana (City of Evansville v. State,118 Ind. 426; and State v. Denny,118 Ind. 449), which he claims support his contention. While there are many points of similarity between the cases cited and the case at bar, we are of the opinion that the constitutional provisions of the State of Indiana are such as to easily distinguish those cases from the one we are considering, and render the application of the rule of construction adopted by that court inapplicable here. Section 14 of the constitution of Indiana, which corresponds to our Section 35, is found in Article V of the Indiana constitution. That article is devoted to the duties and powers of the executive department of the government. Section 25 of the Indiana constitution, which corresponds to our Section 18, is found in Article IV of the Indiana constitution, which is devoted to the legislative department of that government.

Both sections under consideration in this proceeding are incorporated in the same article, and while this difference may not be very material, it shows at least that the framers of our constitution had but one subject under consideration, and fully treated the matter in the one subject as closely connected and related before they passed to some other subject.

It will be further observed that in the reported case Section 14 of the Indiana constitution is not set out in its entirety.

That provision which relates to the filing of a bill with the governor's objection thereto, with the secretary of state, and its subsequent submission by that officer to the next legislature, is omitted.

The omitted provision reads as follows: "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 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."

If the bills considered by the court in the Indiana cases had been passed over the governor's objections by the general assembly at its next session, as was the case here, we cannot say, under the provisions above quoted, what would have been their fate. There is also a very marked and sharp distinction to be made from the use of the language in our constitution. In the Indiana cases cited the court places great stress upon the language used in the provisions of the constitution applying to the facts before it, which involved the constitutionality of acts passed over the governor's veto at the same session of the general assembly in which the act originated. The constitution provides in terms that if after such reconsideration a majority of all the members elected to each house shall agree to pass or approve, as the case may be, "it shall be a law."

The corresponding provision of our constitution provides that, in the case covered by the Indiana constitution, if after reconsideration it again pass both houses, by yeas and nays, by a vote of two-thirds of the members elected to each house, "it shall become a law"; and in the last clause of Section 35, covering a bill laid before the next session of the legislature by reason of the governor's objections, the same language is used.

There is a marked difference of meaning, as we view it, in the language used in the two constitutions.

Section 35 of our constitution emphasizes this difference of meaning. The first clause of that section, requiring every bill passed by the legislature to be presented to and signed by the governor "before it becomes a law," presupposes by the force of the term the subsequent act of presentation and signing. Further along in the section it provides for action by the legislature upon the objections of the governor, and in the event of certain action "it shall become a law," again, as we believe, presupposing the subsequent act of attestation by the proper officers.

Again, in the last clause of the section, covering the submission of a vetoed bill to the next session of the legislature in the event of certain legislative action, "it shall become a law," presupposing the subsequent mandatory attestation by the officers.

It seems to us that the framers of the constitution used these words with the intention that they should be given the construction we place upon them, and, as we have before stated, emphasized this meaning by declaring in the same section that a bill which remains in the governor's hands beyond a certain limit of time without his approval or disapproval "shall be a law."

Further, this section provides in case final adjournment of the legislature has been had, and the governor does not within the time limited by the section file the bill, with his objections thereto, in the office of the secretary of state, then, in that event, "it shall be a law." In both of these clauses the precise language of the constitution of the (State of Indiana is used, while the clause of our constitution covering the case presented uses the language "it shall become a law."

Not only is this construction of Section 35 supported by the language used, but it is in harmony with the construction placed upon it by the legislative department of government since the adoption of the constitution.

We believe it is well settled by the decisions of this court that long continued and contemporaneous construction placed by the coordinate branch of government upon a matter of procedure in such coordinate branch of government should be given great weight. This rule has been followed in a number of cases, and most clearly and forcibly stated in the case of State v. Grey, 21 Nev. 378,32 Pac. 190.

In the case of Dayton Mining Co. v. Seawell,11 Nev. 399, Justice Hawley, discussing this matter, uses the following language: "But in this connection it must, as we think, be admitted that, although the action of the legislature is not final, its decision upon this point is to be treated by the courts with the consideration which is due to a coordinate department of the state government, and in case of a reasonable doubt as to the meaning of the words the construction given to them by the legislature ought to prevail."

Commencing with the first session of the legislature after the adoption of the constitution, and continuing down to the nineteenth session, in 1899, in every instance, with possibly one exception, when legislative action was taken upon vetoed bills, and such bills were passed over the veto, the legislature by its act of attestation has construed Section 35 as we construe it. In the first session a large number of bills were returned to the legislature with the governor's objections, and in every instance after passage over his objections they were again attested by the officers named in Section 18 of the constitution, two of whom (the president of the senate and the speaker of the assembly) were fresh from the convention which framed the constitution.

The Supreme Court of the United States, we believe, has even gone further, and in the case of Field v.Clark, 143 U. S. 649, has approved the doctrine laid down in the case of State v. Swift, notwithstanding the federal constitution contains no provision expressly requiring enrolled bills which have passed Congress to be attested by the signatures of the presiding officers of the two houses, and bases its conclusion upon the usage, orderly conduct of legislative proceedings, and the rules under which Congress has acted since the organization of the government.

The relator further contends that the construction placed upon these sections by the legislature is without force, for the reason that the officers have inserted over their signature, in many instances, a history of the action taken, and have not uniformly placed their attestation upon the face of the bill. It is sufficient to say in answer to this contention that we are not willing to declare that, because of an abundance of precaution manifested by the officers, their work should fail; neither are we willing to sacrifice the substance of the constitution to a mere matter of form, when form is not the essence.

For the reasons given, we are clearly of the opinion that the peremptory writ should be denied.

BELKNAP, J.: I concur.

FITZGERALD, J.: I dissent.