May v. Rice
| Decision Date | 27 November 1883 |
| Docket Number | 11,250 |
| Citation | 91 Ind. 546 |
| Parties | May v. Rice, Auditor |
| Court | Indiana Supreme Court |
From the Superior Court of Marion County.
The judgment is affirmed, with costs.
T. A Hendricks, for appellant.
F. T Hord, Attorney General, for appellee.
This is a proceeding by mandamus instituted by the appellant to compel James H. Rice, as Auditor of State, to issue to her a warrant upon the State Treasurer for $ 10,000. The judgment below was in favor of the auditor. At the session of 1883 the General Assembly passed the following, denominated a joint resolution, viz.:
This resolution was signed by the presiding officer of each House, and at the proper time was presented to the Governor for his approval. The Governor did not approve and sign it, nor did he return it, with his objections, to the Legislature, but caused it to be filed in the office of the Secretary of State. It appears now among the published laws of the session. Acts 1883, p. 211.
In June, 1883, Mrs. May requested and demanded of the Auditor of State a warrant upon the treasury for the amount named in the resolution. The Auditor, believing that the resolution does not confer upon him the legal right to draw such warrant, declined to comply with the demand. Whether it does or not is the question for decision. The Constitution provides that the Auditor of State shall perform such duties as may be enjoined by law. Section 151, R. S. 1881.
Section 5639 of the statute provides, inter alia, as follows: "The Auditor of State shall, at no time, draw a warrant upon the Treasurer of State unless there be money in the treasury belonging to the fund upon which the same is drawn to pay the same, and in conformity to appropriations made by law, and on money actually in the treasury, subject to the payment of the same." Another section makes the Auditor criminally liable for drawing a warrant in violation of the above section. It is very clear, then, that the Auditor has no authority to draw such warrant unless there has been an appropriation made by law. The Constitution further provides as follows: "No money shall be drawn from the treasury but in pursuance of appropriations made by law." Section 195, R. S. 1881. And further, as follows: "The style of every law shall be: 'Be it enacted by the General Assembly of the State of Indiana'; and no law shall be enacted, except by bill." Section 97, R. S. 1881. Does the so-called resolution so meet these several requirements of the Constitution as to make a valid appropriation of the $ 10,000? It has neither the title nor style of a law, as required by the above constitutional provisions. It was not, eo nomine, enacted as a "bill." In name and form it purports to be a joint resolution, and not a bill or "act" of the Legislature. It must be treated as a resolution, and not as a bill. This suggests three inquiries:
1st. Is it essential, to constitute a law, in the sense in which that term is used in the Constitution, that the enactment shall have been presented and passed as a bill?
2d. Is it essential, in the enactment of a law, that the words prescribed for the enacting clause shall be used, or may the words "Be it resolved" be substituted for "Be it enacted"? Out of these enquiries springs the more general one:
3d. Is this resolution a law, in any sense, as that term is used in these sections of the Constitution and statutes, in relation to the appropriation of money and the drawing of warrants upon the treasurer by the auditor of State?
One purpose of the framers of the Constitution, and of the people in its adoption, we think, is patent, and that was to guard the treasury against extravagant, unjust, and hastily and carelessly allowed demands. It was the same purpose as led the House of Commons to adopt the standing order that, before a bill for the expenditure of public money should be introduced, the subject-matter should be first considered in committee of the whole, and the bill be ordered by that committee. Cushing's Law and Practice of Legislative Assemblies, section 2079. It was a kindred purpose to this, which led to the practice in the English Parliament, that all bills for the imposition of public burdens, by way of raising revenue, shall originate in the House of Commons, and which led to the incorporation into the constitution of the United States, and of most of the States, that such bills shall originate in that branch of the Legislature nearest the people. Cushing, section 2303; May Parliamentary Prac., pp. 437, 447; R. S. 1881, sections 7, 113.
Is a resolution a bill? Perhaps as accurate a definition of a bill as can be found is that given in Webster's Dictionary: "A form or draft of a law, presented to a Legislature, but not yet enacted, or before it is enacted; a proposed or projected law." "In some cases statutes are called bills; but usually they are qualified by some description; as, a bill of attainder." Bills and acts are sometimes used as synonymous terms. Cushing, section 2055. The definition of a bill as given by Webster is that usually accepted and acted upon, but, as we shall see, our Constitution extends it. The idea conveyed by the word bill is different from that conveyed by the word resolution. The distinction between a bill and resolution is clearly kept up in the Constitution of this State, as an examination of some of its provisions will show. We call attention to some of the sections of article 4: Bills may originate in either house, except revenue bills. Section 17. The vote on the passage of a bill, or joint resolution, shall be taken by yeas and nays. The bill must be read by sections on three different days, etc. Section 18. A joint resolution, of different sections, doubtless may be passed upon one reading. Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be embraced in the title. Section 19. There is no such provision in relation to joint resolutions. No act shall ever be revised or amended by mere reference to its title. Section 21. This section has no reference to joint resolutions. No "act" shall take effect until the same shall have been published and circulated in the several counties of the State by authority, except in cases of emergency, etc. Section 28. This can have no reference to joint resolutions. They take effect as soon as passed. Bills and joint resolutions must be passed by a vote of a majority of the members of the Legislature, and, when so passed, shall be signed by the presiding officers of the respective houses. These requisites they have in common, but the distinction is clearly kept up. Section 25. In section 14, of article 5, a bill is recognized as still a bill, after its passage, and until it has reached the Governor. Every bill which has passed, etc., shall be presented to the Governor. The Governor is required to either sign the bill, or return it to the house in which it may have originated, with his objections, etc. If he sign the bill, it becomes a law. If he veto it, and it is not repassed by the requisite vote, it does not become a law. Nothing of the kind is required in relation to a joint resolution under our Constitution, as we understand and interpret that instrument. Such a resolution, if passed by the requisite vote, and signed by the presiding officers, is in full force. Nothing would be added to its validity and force by the signature of the Governor, nor has he any power to defeat it by a veto. It does not go to him for any purpose of approval or disapproval. It appears from the Constitutional Debates that a proposition to include joint resolutions with bills in the above section, so that they should be sent to the Governor, was voted down. 2 Debates Const. Con., p. 1331. This action of the convention is the more significant when we recollect that the convention was in a work of reform, adapting the new Constitution to the increased wants and dangers of a rapidly increasing and progressive population, and that the Constitution of 1816, which was being superseded, provided that joint resolutions as well as bills, should be sent to the Governor for his approval or disapproval, and to be treated by him and the Legislature as bills if vetoed by him. It is very apparent from this examination of the Constitution that the terms bill and joint resolution, as used therein, do not mean the same thing. They are widely different. Their functions are altogether different. Authority to act by joint resolution is given, affirmatively, by the Constitution in but few instances.
By such resolution, the two houses may adjourn for more than three days. Article 4, section 10. Certain officers may be removed by such resolution. Article 6, section 7. Possibly, under section 17, of article 5, the powers granted to grant pardons, etc., may be exercised by such resolution. Besides the authority thus expressly granted, a joint resolution doubtless may be the means of expressing the legislative will in reference to the discharge of an administrative duty if such expression falls short of the enactment of a law. The general and most common use of...
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