Goddard v. Kirkpatrick , 193 Okla. 92 ( 1943 )

This is an original action in its nature quo warranto, commenced May 18, 1943, by Charles B. Goddard and C.A. Beck, who with James W. McMahan constituted the State Game and Fish Commission by appointment, under authority of section 1, chapter 45, Session Laws 1925, amended by chapter 27, Session Laws 1929 (Title 29, O. S. 1941 § 1). Plaintiffs' terms of office would have expired July 1, 1943, and June 14, 1945, respectively.

Defendants constitute the membership of the State Game and Fish Commission by virtue of appointments made and confirmations had on April 1, 1943, under authority of Senate Bill No. 89, enacted by the 19th Legislature (Harlow's Session Laws 1943, page 363), which by its terms creates a like commission, prescribes duties, qualifications, and terms of office, and repeals conflicting acts. The defendants have qualified and entered upon the discharge of duties of their offices to the exclusion of plaintiffs.

The validity of the authority under which defendants purport to act in the discharge of their official duties is challenged by this action, and for the purpose of establishing their contention that Senate Bill No. 89 is not the law, plaintiffs petition the court to resort to journals of the Legislature.

It is agreed that the act in question, without the signature of the Governor, correctly enrolled, was on April 14, 1943, delivered by the Governor to the Secretary of State, and that the same now appears of record in the office of the Secretary of State.

Section 11, art. 6, of the Constitution of Oklahoma provides that before any bill shall become a law as a result of enactment by the Legislature, it shall be presented to the Governor for approval, to be evidenced by his signature, but that in event of objection the Governor shall return the bill to the house of its origin, with his objections, for legislative reconsideration. It is further provided that:

"If any 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 Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. . . ."

In the latter event the Governor's approval is required within 15 days after legislative adjournment. The 19th Legislature adjourned April 1, 1943. The bill in question, as recorded in the office of the Secretary of State, is duly authenticated (sections 16, 17, article 6, Constitution). Upon the issue as to whether this court will look beyond the enrolled bill signed by the presiding officers of the two houses of the Legislature, and in effect approved by the Governor's acquiescence and his affirmative act in transmitting the bill to the official registry, we may bear in mind the language of the Supreme Court of the United States in Field v. Clark, 143 U.S. 649, 36 L. Ed. 294. This court committed itself to the doctrine there stated in the early decision of Atchison, T. S. F. Ry. Co. v. State (1911), 28 Okla. 94,113 P. 921:

"The signing by the Speaker of the House of Representatives, and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate . . . carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act, so authenticated, is in conformity with the Constitution."

It was said in the opinion committing this court to the doctrine stated:

"It is not irrational to hold that when a legislative body has put forth a bill, meaning to do so, and that bill has been duly authenticated in the prescribed manner, then the common safety of law-abiding citizens requires that the courts should respect it as law, without inquiry into the mode of its passage. It is this consideration which lies at the foundation of the rule everywhere recognized, that no law can be impeached for fraudulent motives actuating the legislators, nor on account of corrupt influences brought to bear upon them. . ."

According to the expressed view in this jurisdiction, it is far better that a provision should occasionally find its way into the statute through mistake or even fraud than that every act should be at any and all times liable to be put in issue and impeached by the journals, "loose papers of the Legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischief absolutely intolerable."

As shown by the agreed facts, and as required by section 34, art. 5, Constitution, Senate Bill No. 89 was adopted by the House of Representatives and by the Senate on March 11 and March 15, 1943, respectively. As contemplated by section 35, art. 5, Constitution, the bill was signed in the presence of the respective houses by the presiding officers. On March 16, 1943, the bill was transmitted to the Governor, under the provisions of section 11, art. 6, Constitution, and thereafter, on March 22, 1943, the same being the fifth day subsequent to transmittal (by reason of the constitutional provision excluding Sunday intervening), at the request of the Senate, evidenced by its adopted motion, for the purpose of reconsideration, the Governor, without further affirmative action in either signing or by way of stating objections, returned the bill to the Senate. On the same day (March 22, 1943) the Senate reconsidered its action of adoption, declined then to concur in "Engrossed House Amendments to Engrossed Senate Bill 89," and requested the Honorable House to grant a conference thereon. No further action ensued until just prior to legislative adjournment, when the Secretary of the Senate, at the direction of the president pro tempore, returned the bill to the Governor.

By stipulation, we are afforded Rule 45(b) of the House of Representatives, showing adoption of Durham's Manual (Durham's Forum), wherein provision is made, in the absence of house rule, by concurrent action, for the recall of an enrolled bill from the Governor. The provision includes:

"But one house only may not for any purpose recall a bill from the Governor; neither may both houses make this recall after the bill has passed from the hands of the Governor."

Senate Rule 46 so provides. But it is stipulated that whereas from 1907 to 1931 there was adherence to the requirement for concurrent action of both houses for the recall of such a bill, during the past decade (1931-1941) 20 such bills have been recalled by the Senate; and whereas there was like adherence after statehood (1907-1925) to the rule requiring concurrent legislative action for such purpose, the House of Representatives, without concurrence of the Senate, within the past 16 years (1925-1941) has recalled 41 such bills. Under this showing it is urged that the recall of the bill in question is valid and that by reconsideration the legislative body last adopting the bill withdrew its approval so that the legislation failed. Thus the decisive issue presented is whether an enrolled bill, valid upon its face, may be impeached by resort to legislative journals.

In the case of Atchison, T. S. F. Ry. Co., supra, wherein the form of the bill was in issue, this court answered the inquiry in the negative. While plaintiffs would distinguish our case of first impression by confining the rule to the form of the legislation, it is to be observed that the court designated the scope of its inquiry by presenting to itself the query: "Will the courts look beyond the enrolled bill signed by the presiding officers of the two houses of the Legislature and approved by the Governor to determine whether such bill was in fact passed by the Legislature?" In view of the broad scope of the inquiry, there can be little doubt that the law announced in the syllabus in that case is applicable both as to the form and the fact of passage of such a bill. The syllabus reads:

"When an enrolled bill has been signed by the Speaker of the House, and by the President of the Senate, respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not competent to show from the journals of the House that the act so authenticated, approved, and deposited did not pass in the form in which it was signed by the presiding officers and approved by the Governor."

In the case of Phelps et al. v. Childers, State Auditor (1939) 184 Okla. 421, 89 P.2d 782, it was contended that a bill failed by reason of legislative noncompliance with the constitutionally prescribed mode of enactment, but this court adhered to the rule stated, and cited as authority Coyle v. Smith et al., 28 Okla. 121, 113 P. 944, shown to have been affirmed by the Supreme Court of the United States,221 U.S. 559, 31 S. Ct. 688, 55 L. Ed. 853.

In Coyle v. Smith (1911) the like contention was made, not as to the form of the measure, but as to its existence as a law. Therein the location of the site of government was involved, and it was held that:

". . . It is not competent to show from the journals of the House that the act so authenticated, approved and deposited, was not read on three different days in each house."

In McNeal v. Ritterbusch, County Treasurer, et al.,29 Okla. 223, 116 P. 778, it was contended that the particular act "never passed the Legislature, was never signed or attested by the officers of the House and Senate . . .;" but it was held to be "incompetent to prove by the journals of the Legislature that it did not pass in that form," and that no other evidence is competent to establish that the enrolled bill, duly authenticated, was different from the bill actually passed by the Legislature.

Johnson v. Grady County (1915) 50 Okla. 188, 150 P. 497, presented an instance wherein the converse of the rule prevailed. Therein the enrolled authenticated bill had been lost or destroyed, and it was held that necessity justified the establishment of the particular law from the best available sources, which consisted of documentary evidence. The opinion in that case was in complete accord with the consistent prevailing rule in this jurisdiction. That rule was recast in substantially the following form:

". . . an enrolled bill, duly filed in the office of the Secretary of State as the law provides, imports absolute verity, and . . . the same cannot be impeached by the legislative journals, and . . . it is not competent to show by the journals that the act was not regularly passed, and . . . when such an act was (is) called into question, the courts. . . . look to the enrolled bill only."

See, also, Western Union Tel. Co. v. Hankins, 104 Okla. 11,230 P. 857.

In Thompson v. Huston, County Treas., 170 Okla. 195,39 P.2d 524, it was again sought to show by legislative journals the absence in the Senate of a roll call on final passage of a bill, as required by the Constitution, but impeachment of the enrolled and recorded bill was denied under the view that the authenticated record imported an absolute verity.

In Ex parte Benight (1932) 53 Okla. Crim. 293, 11 P.2d 208, it was contended in connection with the "Barbers' Bill" that legislative journals would show the bill in question, after passage and presentation to the Governor for his approval, was, within the five days allotted by the Constitution for executive consideration, vetoed and returned to the house of its origin, where it remained without further legislative action, and consequently failed of passage. In that instance the enrolled bill was duly authenticated and recorded, under such conditions as are present in the case at bar in the particular that the bill was allowed to become a law without the signature of the Governor. From the pleadings and admissions therein it appeared that within the five days allotted for consideration the Governor in fact returned the bill to the House of Representatives, suggesting changes by way of amendments, but indicating as to the bill "entire accord with its purposes." It was said that nowhere had the Governor expressed his veto nor was there further effective concurrent legislative action upon the measure, but the bill was returned to the Governor and it was declared to be a law. After an exhaustive application of the doctrine announced by the authorities cited, the court noted its agreement with the rule of conclusiveness announced by the Supreme Court as to all matters not required by the Constitution to be shown on the journal and it was held that the enrolled bill signed by the officers of the House and Senate and filed in the office of the Secretary of State imports absolute verity, and that proof by the journal or otherwise that the bill did not become a law is incompetent.

Plaintiffs rely upon State ex rel. Dawson, Atty. Gen., v. Sessions, Secretary of State, 84 Kan. 856, 115 P. 641, Ann. Cases 1912A, 796, wherein, under the facts presented, after passage of a bill and on the day of its presentation to the Governor of Kansas, he returned it to the House with his objections, and on the same day the House adopted a resolution to recall the bill from the Governor. While there is language contained in the opinion to support the view that the bill was recalled under a custom considered significant in construction of its own powers by a co-ordinate branch of the government, nevertheless the author of the opinion indicated his view that the legislation was defeated by the Governor's return of the bill with the statement of his objections, amounting to a veto. The rule prevailing in Kansas was stated with citations in our case of first impression, and it was then determined that within this jurisdiction the court would pursue a course elsewhere prevailing, including the rule at common law.

In McKenzie v. Moore, 92 Ky. 216, 17 S.W. 483, relied upon by plaintiffs, the action was one to record a bill that had been passed by the Legislature and delivered to the Governor. The bill, because of objectionable features, was returned to the author and retained by him a year, while, in the meantime, a substitute bill was enacted and vetoed. Since the was nothing to show that the bill was ever in the possession of the Secretary of State or recorded, there is in that case no analogy with or variance from the rule prevailing in this state.

Likewise, in State v. Savings Bank of New London,79 Conn. 141, 64 A. 5, there was considered the erroneous presentation of a bill to the Governor. The most recent decision that has come to our attention is State ex rel. Florida Portland Cement Co. v. Hale et al. (1937) 129 Fla. 588, 176 So. 577. Therein the court considered a bill, as in the case at bar, that had been duly passed by both the House and the Senate. It had been authenticated as required by the Constitution, presented to the Governor, and filed in the office of the Secretary of State, but the Governor, pursuant to the request of the House of Representatives, had returned the bill without objections. Under like constitutional provision applicable to the case at bar, the bill by the Florida court was declared to be a valid law. Under the syllabus it is stated:

"Neither the House of Representatives nor the Senate of the Legislature of Florida can by its independent resolution recall from the hands of the Governor a bill which has been duly passed by the Legislature, has been duly authenticated, and transmitted to the Governor for his consideration."

— and:

"The action of the Governor in transmitting bill . . . to House of Representatives . . . did not affect validity of act."

The opinion of the Florida court, citing authorities, called attention to lack of harmony in this country regarding the right of the Legislature to recall a bill duly passed and presented to the Governor, and classified the holdings as follows:

First, in some jurisdictions it is held competent to recall such bill when the legislative request is evidenced by a joint resolution. City of Ensley et al. v. Simpson, 166 Ala. 366, 52 So. 61; Robinson v. City of Ensley, 167 Ala. 226, 52 So. 69.

Second, when such bill is returned to one of the legislative bodies at its request for the purpose of amendment, although the request is not by joint resolution, concurrent action of both houses affords jurisdiction for reconsideration. Baltimore Fidelity Warehouse Co. v. Canton Lumber Co., 118 Md. 135,84 A. 188; Teem v. State, 79 Tex. Crim. 285, 183 S.W. 1144; McKenzie v. Moore, supra.

Third, in other jurisdictions it is held the Legislature is not empowered by joint resolution to recall such a bill and it may not be validly reconsidered, though the Governor returns the bill on request. Wolfe et al. v. McCaull (1882) 76 Va. 876, 96 A.L.R. 1311, note; People v. Devlin,33 N.Y. 268, 88 Am. Dec. 377. In the cause at bar, as in the Florida case, there was neither joint resolution nor concurrent action, but the bill as transmitted to the Secretary of State by the duly constituted authority shows on its face the constitutionally required passage and authentication.

In the case at bar there was an entire absence of any action, joint or concurrent, on the part of the House of Representatives upon the request for, or the returned bill. But the subsequent action of the Senate attempting to make the bill subject to its power was, as in the New York case, "unauthorized and unusual, and it resulted in no agreement between the two houses."

As to such a situation as confronts us, the views expressed in the New York case are that one house cannot by its act of reconsideration "undo, annul, or change what both had solemnly done, under their solemn legislative sanction, according to all constitutional forms, and according to their published rules and forms of law." As Justice Campbell expressed it:

"The Legislature had declared its will; no further separate action was required or allowed; the streams issuing from Senate and Assembly fountains had flowed together and were now united in one. The united action of both houses would be necessary to recall the bill."

There the Assembly, without the consent and, as afterwards appeared, without the approval of the other house, asked and received the return of the bill from the Governor, but there was no further agreement between the Senate and the Assembly. The Legislature adjourned and the bill was again sent to the Governor and restored to its original condition. It had been passed by the Legislature and, by the approval of the Governor, became a law.

"The recall by the Assembly was an infringement of parliamentary law; it was an attempt to do alone what, if it could be done at all, required the joint action of both Senate and Assembly. All subsequent proceedings by the Assembly were irregular and of no effect, and when there was a failure to procure the assent of the Senate to an amendment, it was . . . the duty of the Assembly to return the bill to the Governor."

It is to be noted that under the rigid rule obtaining in Virginia the act of the Governor in returning a bill, presented to him for approval, in response to a joint resolution of the Legislature, is considered a mere "courtesy on the part of one co-ordinate branch of the government towards another, and was not intended and cannot be construed as a compliance with the requirements of the Constitution, that if he do not approve it, 'he shall return it (the bill), with his objections, to the house in which it shall have originated, who shall enter the objections at large on their journal.' "

Within that jurisdiction, under the rule stated "the constitutionally prescribed method of procedure between the enacting and approving law-making agencies is deemed exclusive," it is said that:

"The Constitution prescribes with minuteness the course the Governor must pursue with regard to bills placed in his hands, and its mandates are imperative. . . . The Constitution fixed his duty. He cannot evade that duty if he would, by allowing the Legislature to recall the bill from his hands, and to defeat, by mere non action, a measure they have once declared, with due solemnity, to have passed."

Yet, in the earlier New York case, People v. Devlin, supra, the rigors of the later Virginia rule did not prevail. There it was held that when the Governor, as in the case at bar, returned a bill presented to him for approval, at the request of only one of the legislative houses, any action taken by it alone upon the returned bill was a nullity. Nevertheless, the New York court contemplated that such a bill might be recalled by the joint action of both legislative houses. The syllabus of that case reads in part:

"After a bill has passed both houses, and been signed and sent to the Governor for approval, it cannot be recalled, except by the joint action of both; if the Governor send back the bill, on the request of one house, any action it may take thereon is a nullity."

This court is not called upon to determine that affirmative joint action upon such a bill returned under a courteous regard had by one co-ordinate branch of the government for another would not as effectually repeal or amend legislation as would a new measure enacted for that purpose.

From a review of the authorities and the commitments of our own court to that which we consider the better reason rule, we conclude that the court must import a verity to the legislation herein considered as it appears upon the record in the office of the Secretary of State, duly enrolled and authenticated. It follows that the writs sought in the nature of quo warranto should be, and the same are, denied.

GIBSON, V.C.J., and BAYLESS, WELCH, HURST, and ARNOLD, JJ., concur. CORN, C. J., and OSBORN and DAVISON, JJ., dissent.