Teem v. State , 79 Tex. Crim. 285 ( 1916 )

In his motion for rehearing appellant for the first time raises a question which was not even suggested nor intimated in the lower court, nor in this, until his motion for rehearing was filed.

He now contends the medical practice Act, fully cited in the original opinion as it now appears in the Revised Civil Statutes and Penal Code, was not in fact enacted at the time it purports to be, but that the Act as it first reached the Governor's hands instead was enacted and became the law, and that, therefore, he was convicted under what purported to be the law, but which in fact and reality was not the law.

In his motion he cites the House and Senate Journals of the Thirtieth Legislature at the regular session of 1907, and undertakes to show from them this state of fact: That when the bill which is designated "Senate Bill No. 26" was first introduced in the Senate, it was properly referred to a committee, reported back with the recommendation that it do pass, was then properly in its passage through the Senate amended, finally passed by that body and sent to the House. Reaching the House properly, it was referred to a committee, reported back by the House committee that it do pass, attempts made to amend it, which failed, and that the House finally passed the bill and adopted a motion to table a motion to reconsider it. That the bill then was returned to the Senate with information of the House's action. It was properly signed by the President of the Senate and Speaker of the House and so recorded in the respective Journals, as required by the Constitution, and then sent to and placed in the Governor's hands for his action. That, in a day or two, within ten days after it reached the Governor's hands, and before he ever acted thereon, or attempted to do so, the Senate and House both adopted a joint, or concurrent, resolution requesting the Governor to return the bill to the Senate for correction and amendment, and that the Governor immediately complied therewith in a written communication. That bill, as thus returned, is not shown to have ever again reached the Governor's hands; nor did he direct or request its return; and he never acted thereon in any way. We have applied to the Secretary of State for that bill, if it ever reached his hands. He has furnished us the original archive of all the Acts passed by said Legislature, which we have examined, and no such Act in any way appears therein, and evidently no such Act, enrolled or otherwise, has ever in any way reached the hands of the Secretary of State, the sole legal custodian of such matters. At least, none such can be found.

The Senate then, through the proper channels, and with the proper action, again sent the bill to the House. The House rescinded its action in passing the bill to a third reading and final passage, and the bill was thereupon entered on the calendar on its second reading as it came from its committee. When the Speaker afterwards, and in regular order, properly laid the bill before the House for its second reading and final passage, the point was made that the House had no power to recall the bill from the Governor, and that it had become a law under article 4, section 14, of our Constitution, and Wolfe v. McCaull, 76 Virginia, 876, cited as authority to such effect. The point was ruled against by the Speaker, and thereupon the bill was corrected and amended and passed; then returned properly to the Senate. The Senate concurred in the House amendments, and so informed the House. The bill, as then corrected and amended, was properly enrolled and signed by the President of the Senate and the Speaker of the House in their respective open sessions and due record made thereof in their respective Journals. The bill as thus passed was also copied in full in the Senate Journal. This bill, as thus corrected and amended and passed, enrolled and signed, was sent to the Governor and duly approved by him as such within the time required by the Constitution, and by him delivered to the Secretary of State, where it thus fully appears as an archive of his office, and he had it duly printed and promulgated as the Act of the Legislature. The printed law in the Acts of the Thirtieth Legislature is an exact copy of said archive in the Secretary of State's office, except, of course, the printed Act omits the signatures of the President of the Senate, Speaker of the House, the Governor and the Secretary of State noting when it was delivered to and filed by him, as is always done in printing the Acts of the Legislature.

Before passing from the said Journals, we will state some of the amendments which were attempted to be passed to said bill in both the Senate and House on its original passage in each.

In the Senate: Section 13 was attempted to be amended by adding these words: "Provided, the provisions of this Act shall not apply to any magnetic healer who has been practicing his or her profession fifteen years in this State prior to the taking effect of this Act." Section 10 was attempted to be amended after the words "publicly represent themselves as such," by adding this: "Nor to certified members of regularly organized churches, who include in the exercise of their religious faith healing the sick by purely spiritual means without the use of drugs or any material methods; provided, such persons shall not practice midwifery, visit patients suffering with contagious diseases, or undertake the treatment of injuries requiring the services of a surgeon without the co-operation of a surgeon."

In the House: Section 10 was attempted to be amended by adding this: "Nor to any person who practices the art of healing without the use of medicines and does not practice surgery." And again, by adding to section 10, this: "Provided, that the provisions of this Act do not apply to persons treating disease who do not prescribe or give drugs or medicine, and who have been legally practicing continuously within the State of Texas for a period of five years prior to the passage of this Act."

All these attempted amendments, in both the Senate and House, were defeated, and both bodies refused to amend the bill by adding any of them thereto.

Section 13 of the Act as contained in the bill when originally introduced was as follows: "Any person shall be regarded as practicing medicine within the meaning of this Act who shall publicly profess to be a physician or surgeon; or shall treat, or offer to treat any disease, deformity or injury, by any system or method, and charge therefor, directly or indirectly, money or other compensation."

Before its passage when first before the Senate, section 13, by proper amendment duly adopted, was changed after the semicolon, beginning with the word "or," so as to read as follows: "or shall treat or offer to treat any disease or disorder, mental or physical, deformity or injury, by any system or method, or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation."

This section 13 as finally passed and became the law in 1907 was copied in the original opinion.

Recurring now to appellant's attack on the validity of said law, we will further state that none of the proceedings of either house or the said action of the Governor was offered in evidence in any way in the lower court on the trial. Nothing whatever about them appears in the record as it came from the lower court, and nothing now except in appellant's motion for rehearing, signed simply by his attorneys.

In the case of Ex parte Tipton, 28 Texas Crim. App., 443, this court said: "How far will the courts of this State go in inquiring into the Acts of the legislative department of the government? When a bill has been authenticated by the signatures of the President of the Senate, and the Speaker of the House of Representatives, and the Governor of the State, and has been deposited in the office of the Secretary of State, and published as a law of the State, will the courts of this State, from the journals of the Legislature or other evidence, determine that the statute is not a valid law because not enacted in accordance with the formalities required by the Constitution, or because the statute so authenticated is not the one enacted by the Legislature?"

And then answered this query as follows: "In Usener v. State, 8 Texas Crim. App., 177, this court quotes approvingly from State v. Swift, 10 Nevada, 176, as follows: ``Where an Act has been passed by the Legislature, signed by the proper officers of each house, approved by the Governor, and filed in the office of the Secretary of State, it constitutes a record which is conclusive evidence of the passage of the Act as enrolled. Neither the journals kept by the Legislature, nor the bill as originally introduced, nor the amendments attached to it, nor parol evidence, can be received in order to show that an Act of the Legislature, properly enrolled, authenticated, and deposited with the Secretary of State, did not become a law. This court, for the purpose of informing itself of the existence or terms of a law, can not look beyond the enrolled Act, certified to by those officers who are charged by the Constitution with the duty of certifying and with the duty of deciding what laws have been enacted.'"

In the Usener case, this court further said that in said case of State v. Swift, all the authorities, pro and con, were collated and most carefully elaborated and reviewed, and the result arrived at as quoted just above. This doctrine is held both by this court and our Supreme Court and Courts of Civil Appeals. Williams v. Taylor, 83 Tex. 667, 19 S.W. Rep., 156; Blessing v. City of Galveston, 42 Tex. 641; Usener v. State, supra; Ex parte Tipton, supra, 13 S.W. Rep., 610; McLane v. Paschal, 8 Texas Civ. App. 398[8 Tex. Civ. App. 398], 28 S.W. Rep., 713; Baldwin v. State, 21 Texas Crim. App., 593, 3 S.W. Rep., 110; Day Land, etc., Co. v. State, 68 Tex. 526 [68 Tex. 526], 4 S.W. Rep., 865; Ry. v. Foth, 45 Texas Civ. App. 275[45 Tex. Civ. App. 275], 100 S.W. Rep., 176; Doherty v. City of Galveston, 19 Texas Civ. App. 708[19 Tex. Civ. App. 708], 48 S.W. Rep., 804; Presidio County v. Bank, 20 Texas Civ. App. 511[20 Tex. Civ. App. 511], 44 S.W. Rep., 1069; State v. Larkin, 41 Texas Civ. App. 253[41 Tex. Civ. App. 253], 90 S.W. Rep., 917; Parshall v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 759. It is also so held by the United States Supreme Court. (Field v. Clark, 143 U.S. 649; Lyons v. Woods, 153 U.S. 649.) And the courts of the following States also so hold: California, Indiana, Kentucky, Mississippi, Montana, Nevada, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, Utah and Washington. (36 Cyc., 972, and note 7.) So that while we have examined the journals of both houses and recited what they show, we can not look to nor consider them so as to defeat the said Act or hold it invalid, even if by doing so such would be their effect.

But suppose we could look to the journals for any such purpose; then, instead of their showing that said Act was invalid because of the method by which both houses secured the return of the bill from the Governor as first passed and then corrected and amended and passed it and in its corrected and amended condition placed it in the Governor's hands, who then approved and filed it with the Secretary of State, the very reverse of this is true. There is no provision of our Constitution which directly prohibits either or both houses of the Legislature with the Governor's consent to procure the return from him of a bill that had been passed and placed in his hands, before he had in any way acted thereon. Nor is there any provision in our Constitution prohibiting this by implication even. As a basis for appellant's contention, he cites only section 37, article 3, and section 14, article 4, of our Constitution, and said case of Wolfe v. McCaull, supra, and Pickle v. McCall, 86 Tex. 212. Said article 3, section 37, simply requires that no bill shall be considered by the Legislature unless it has been first referred to a committee and reported thereon; and shall not be passed unless it has been presented and referred to and reported from a committee at least three days before the final adjournment. The journals of both houses with absolute certainty show that this constitutional provision was literally complied with by both houses. Said section 14, article 4, directs and regulates when and how the Governor can approve or veto any such bill or do neither when it reaches him. It is quite lengthy and unnecessary to recite. There is nothing in it which either directly or indirectly prohibits him, before he acts on it, from returning it to either house at their request. In this instance, the journals, as we have stated, clearly and without any doubt, show that both houses requested the Governor to return the original bill as first passed, to the Senate for correction and amendment, before he had in any way acted thereon, and before the time given him by the Constitution to act thereon had expired and that he promptly complied with their request, and that thereupon after that bill was returned the Senate properly sent it to the House, which then rescinded all of its previous actions in passing the bill, and then in regular order amended and properly passed the bill as amended, afterwards returning it to the Senate, which accepted the amendments of the House, and then passed and properly enrolled the bill as thus corrected and amended. That that bill was then properly enrolled, signed by the President of the Senate and the Speaker of the House in open session, and the proper entries showing it was thus signed made in the journals of the respective houses, and then as corrected and amended and finally passed delivered to the Governor, who approved it officially and delivered it to the Secretary of State to be published as the law, and it was so published.

Our Constitution, section 11, article 3, expressly gives each house the right, power and authority to determine the rules of its own proceedings. In searching through the journals for these rules, we find that neither house had any rule which either directly or indirectly prevented them, or either of them, from recalling from the Governor a bill which they had passed and placed in his hands, for his action for correction and amendment before he had acted thereon. On the contrary, we find that each house had adopted, and there was in force, before this bill was even introduced, and continuously thereafter, a rule which provided that where their rules were silent or inexplicit on any question of order or parliamentary practice, Jefferson's Manual and the Digest of the Rules of Practice of the United States House of Representatives shall be considered as authority. Upon an examination of said Jefferson's Manual and Digest for 1906-7, page 479, we find several instances given wherein in the second session of the Fifty-sixth Congress the Congress repeatedly recalled properly enrolled bills which were in the hands of the President at the time, he complying with their request, and such bills were thereafter amended, corrected and passed, enrolled, and then returned to the President for his action, and he then acted thereon. In each instance the President complied with the request, as did the Governor in this instance. We also find in 4 Hines' Precedents, sections 3505 to 3518, numerous instances where this action was had by Congress from the very first and all along. In some instances, the President had actually affixed his signature to the bills approving them, but when Congress requested their return, he erased his signature and complied with their request, returned the bill, and then it was amended, corrected and returned to him for his action, and he then acted thereon. In no instance do we find that the President ever denied such request, and we can find no decision wherein it was ever held, that such action on a bill by the President and Congress was illegal, irregular or improper.

Our Supreme Court, in Fulmore v. Lane, 104 Tex. 509, said: "The veto power when exercised is a legislative and not an executive function. Pickle v. McCall, 86 Tex. 212; Cooley on Const. Lim., 185; People v. Bowen, 21 N.Y. 517." Gottstein v. Lister, 153 Pac. Rep., 601, and authorities there cited. This being so, the Governor in connection with both houses of the Legislature when the houses request the return from him of a bill, and he does so before acting thereon, then they all, — both houses and the Governor, are acting in a legislative, and neither house nor the Governor, is acting in an executive function. So that, under their very rules, both houses at the time were acting in obedience to and in strict compliance with the rules and authority, and in no way can their action be considered as ultra vires or in any way affecting the validity of a bill otherwise properly passed, authenticated and published as the law.

We think the case of Wolfe v. McCaull, supra, is not in point and can not be held to be so. In that case, both houses of the Legislature had finally passed and enrolled a bill, and had delivered it to the Governor for his action. The Senate requested the Governor to return it, which he did temporarily only as a courtesy to the Senate. The opinion of the court specifically says: "The return of the bill with the brief communication from the Governor, was not such a return of the bill as is contemplated by the Constitution. The very language of that communication negatives the idea that he disapproved the bill. It states no ground of objections, but returns it in response to a joint resolution of the general assembly requesting a return of the bill. The truth is, the bill was never beyond the executivecontrol, as shown by the fact that the Governor, on the very dayof its return to the Senate, sent for the bill, and it wasreturned to him by the clerk of the Senate and kept by him untilit was placed in the hands of the keeper of the rolls, togetherwith other bills. The mere delivery by the Governor of this bill to the Senate, at the request of the general assembly, was of no effect, but was merely an act of courtesy which was of no legal effect, and in contemplation of law the bill never left theGovernor's hands until it was placed in the hands of the keeperof the rolls." (Italics ours.) The keeper of the rolls in Virginia, it seems, corresponds exactly with our Secretary of State as the custodian of enrolled bills which have been acted upon by the Governor. In the opinion in that case, it was conclusively shown that the Legislature never in any way acted upon the bill after the Governor returned it to the Senate as a courtesy, but that promptly upon his request, without any action whatever by the Legislature, or either house, on the bill, it was promptly returned to the Governor, approved by him and placed with the keeper of rolls, and unquestionably as decided in that case thereby became a valid law. No such state of facts exist in this case, but the very reverse of what occurred in that case are the facts. It is true, the Virginia court in that case went on to decide that the Legislature had no power to request, nor the Governor to comply with the request, to return the bill to the Legislature for its further or future action, but the decision of that point was clearly obiter dicta. Our Supreme Court, in Pickle v. McCall, supra, recited in effect that the Virginia court had so held, but our Supreme Court not even by implication approved that decision; on the contrary, what it did say indicates that such would not be the law in this State, stating: "Whether facts might exist that would make such a recall, before the Executive had acted upon the bill, lawful, need not now be considered, for such a course would not involve a violation of the rule that both at the same time (the Legislature and the Executive) can not have power over a bill." So that neither the Virginia case nor the case of Pickle v. McCall are in point as sustaining appellant's contention.

Many instances could be mentioned wherein it would be proper, the Governor and the houses of the Legislature acting in concert, at the request of both houses, for the Governor to return such a bill for correction, and even for amendment, after it had been placed in his hands, and before he acted upon it, or the time expired in which he was required to act upon it. It is unnecessary to mention these instances. They will readily occur to anyone. Of course, if the Governor should decline to return the bill but keep it and act upon it, and especially approve and file it with the Secretary of State, as was done in the Virginia case, an altogether different question would arise, but no such state of fact existed in this instance. The very reverse state of facts did exist. So that, if we could look to the journals at all in this instance, they would show that the action of both houses and the Governor was in accordance with the legislative rules pertaining to such matters, and the action of the Governor and both houses were legitimate and proper, and in no way would they invalidate the bill which was passed, signed, approved and published as a law.

Further, even if it could be considered that we are in error in either or both of the propositions above, then the fact that the Thirty-second Legislature, at its regular session in 1911, duly enacted and passed both the Revised Civil Statutes and Penal Code, and that said law was fully re-enacted therein, thereby made the said law as contained in these revisions perfectly legal and in every way valid. We recited in the original opinion both the Revised Civil Statutes and the Revised Penal Code, wherein the said Act was contained. So that in any and all events, the said law under which appellant was convicted was in every way valid and legal.

Again, even if appellant's contention to the effect that said Act as published was not legally passed but that the first Act that was delivered to the Governor became the law, it would be of no avail to him, for so far as the offense charged and proven against him is concerned, it is as fully covered by the provisions of said first Act as it is by the last, as will readily be seen by comparison of the two sections 13. In no event could appellant have legally escaped conviction.

The motion for rehearing is, therefore, overruled.

Overruled.

DAVIDSON, JUDGE, absent.