Clark v. Boyce
| Decision Date | 04 November 1919 |
| Docket Number | Civil 1740 |
| Citation | 185 P. 136,20 Ariz. 544 |
| Parties | BEN R. CLARK, Appellant, v. JESSE L. BOYCE, Auditor of the State of Arizona, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. S. L. Pattee, Judge. Reversed.
Messrs Ward & Griffeth and Mr. W. E. Ryan (Mr. Frank E. Curley Amicus Curiae,), for Appellant.
Mr Wiley E. Jones, Attorney General, Mr. L. B. Whitney and Mr Alexander B. Baker, Assistant Attorneys General, for Appellee.
This is an action in mandamus brought by appellant, as deputy land commissioner, to compel appellee as state auditor to issue a voucher in appellant's favor for his salary as provided for in chapter 160, Session Laws of 1919.
It appears that the Attorney General, having advised the auditor that said chapter did not become a law because it was not signed by the Governor, the auditor, acting upon such advice, refused to O.K. the demanded salary. Chapter 160 as published in the Laws of 1919 contains this notation:
The act as passed by the legislature contains a declaration of emergency, and it is for that reason that the Attorney General contends that, before it could become a law, it must be approved by the signature of the Governor. It is the contention of appellant that the approval of the bill by signing it was not essential to its becoming a law, and this was the sole question involved at the trial and is the sole question that we have before us. The learned trial judge, although expressing the view that chapter 160 was a valid and subsisting law immediately effective, forewent his convictions and held that the law became effective ninety days after date, following the ruling of this court in Santa Cruz County v. McKnight, ante, p. 103, 177 P. 931, and sustained appellee's demurrer to the complaint because the claimed salary did not begin to accrue until ninety days after March 26, 1919; the suit having been filed before the expiration of that time. It seems that both the appellant and appellee are dissatisfied with that conclusion; the appellant contending that it took effect as an emergency law or not at all, and the appellee that it never had the force or effect of law. This diversity of opinion arose out of the wording of our Constitution, and we must admit that it has cost us no little trouble to arrive at a conclusion.
The controversy is as to what construction shall be placed upon subdivision 3, section 1, of article 4, Initiative and Referendum, of the Constitution, which reads as follows:
This subdivision of the Constitution recognizing the people as the repository of all power has provided that all legislative acts passed by the legislature shall be subject to the referendum except emergency measures. To give the people an opportunity to invoke the referendum, if they so choose, laws not emergent do not go into effect at once, but become operative ninety days after the final adjournment of the legislature. Emergency laws when passed according to the forms prescribed by the Constitution, become effective at once and prevent a referendum. The quantum of votes to pass such measures is made greater than is necessary to pass an ordinary bill. It requires two-thirds of both houses and, as against a veto, three-fourths of both houses to pass an emergency bill. An ordinary bill or one subject to the referendum may be passed by a majority vote of both houses and over the Governor's veto by a two-thirds vote. This is not the only difference required in the procedure to be pursued by the legislative body in the enacting emergency and ordinary laws. An emergency bill, in order to become a law as such, must contain in a separate section a declaration of emergency. Appellee contends that a bill may contain the declaration provided and receive the necessary two-thirds vote on the final passage and still fail to become a law. In other words, he claims that the expression, "no such emergency measure shall be considered passed by the legislature unless it shall state in a separate section why it is necessary that it shall become immediately operative and shall be approved by the affirmative votes of two-thirds of the members elected to each house of the legislature taken by a roll-call of ayes and nays and also approved by the Governor," must be literally construed; that the three things therein enumerated must concur in order for it to become a law; and that the approval must be indicated by the Governor signing the bill as provided in section 7, article 5, of the constitution.
We think this construction is somewhat unhorsed by the next clause, "and should such measure be vetoed by the Governor, it shall not become a law unless it shall be approved by the votes of three-fourths of the members elected to each house of the legislature, taen by roll-call of ayes and nays." This last expression is a declaration by the framers of the Constitution that "such measure" may become a law without the Governor's signature inasmuch as no bill passed over the Governor's veto is ever signed by him. There is then at least one exception made by the Constitution whereby "such emergency measure" may become a law without the Governor's approval by signing. The expression, therefore, that "no such emergency measure shall be considered passed by the legislature . . .," etc., is not equivalent to saying that no such emergency measure shall become a law. If it does mean that, that is the end of it. However, failing to receive the signature of the Governor, the bill is not dead nor become functus officio. It has not lost its status as a proposed law.
But suppose we give the expression, "and also approved by the Governor," the meaning contended for, then we cause the framers of the Constitution and the people who ratified it to clothe the Governor with an absolute veto even while the legislature is in session. All he has to do is to retain the bill without any action whatever, and this applies to all emergency measures. His retention of the bill for five days, the legislature being in session, or ten days after its adjournment without action, would not, as in ordinary bills, cause it to become a law as provided in section 7, article 5.
The legislature has all power not prohibited to it by the state or federal Constitution. The Governor can exercise only such power as is granted to him by the state Constitution. Functioning as a part of the legislature, his acts are negative in their nature. Under no Constitution, federal or state, so far as we are advised, is his approval absolutely essential, for they all contain provisions by which bills may become laws without his signature -- as where he keeps the bills in his possession without action for three days or five days or ten days as the case may be, the legislature being in session. His veto is not absolute, but qualified, as, under most Constitutions, the legislature may pass the bill over his veto. Harpending v. Haight, 39 Cal. 189, loc. cit. 201, 2 Am. Rep. 432, 13 P. 189, loc. cit. 201, 12 R.C.L. 1005, According to the appellee's contention, the Governor must either sign the bill or veto it. Failing to do either, the bill is destroyed even though it may have received the unanimous vote of both houses. We think such a construction would indict the people of doing something far from their intention. As we shall see later, no Governor of the state has thought or assumed he possessed such absolute power of veto, nor have the people or the legislature thought so.
If we give this troublesome expression a literal meaning, it involves the negation of what we know to be facts. We know notwithstanding, that the Governor has nothing whatever to do with a bill, emergent or otherwise, until after its final passage by the legislature. "Every measure when finally passed shall be presented to the Governor for his approval or disapproval," is the language of the Constitution (section 12, article 4). While he is an arm of the legislature, he has nothing to do with the introduction or...
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