City of Detroit v. Chapin
| Decision Date | 31 December 1895 |
| Citation | 108 Mich. 136,66 N.W. 587 |
| Court | Michigan Supreme Court |
| Parties | CITY OF DETROIT v. CHAPIN, JUDGE. |
Original mandamus proceeding, brought by the city of Detroit against William W. Chapin, judge of recorder's court of Detroit Mich.
John J. Speed and E. F. Sawyer, for relator. John G. Hawley, for respondent.
Hanchett & Hanchett and B. F. Graves, for Regents of the University.
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: 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 the 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. Commissioners (Md.) 20 A. 1017; State v. Fagan, 22 La. Ann. 545; State v. Supervisors of Coahoma Co., 64 Miss. 365, 1 So. 501; Solomon v. Commissioners, 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 accord 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 the 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 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 the existing rule, as to the 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 whole 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; and, while the constitution there under discussion differed somewhat from the constitution of 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...
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