Robey v. Broersma

• Decision Date: 12 January 1943
• Docket Number: 35.
• Parties: ROBEY et al. v. BROERSMA et al.
• Court: Maryland Court of Appeals

29 A.2d 827

181 Md. 325

ROBEY et al. v. BROERSMA et al.

No. 35.

Court of Appeals of Maryland

January 12, 1943

Reargument Denied Jan. 20, 1943.

Appeal from Circuit Court of Baltimore City; Samuel K. Dennis Judge.

On reargument.

Decree of the Circuit Court reversed and cause remanded for further proceedings in accordance with opinion on motion for reargument.

For former opinion, see 26 A.2d 820.

COLLINS and GRASON, JJ., dissenting.

Hall Hammond, Deputy Atty. Gen. (William C. Walsh, Atty. Gen. on the brief), for appellants.

Hilary W. Gans, of Baltimore, for appellees.

Before BOND, C.J. and SLOAN, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

MARBURY, Judge.

The bill in this case was filed by operators of automatic vending machines to prevent prosecution for failure to obtain licenses required by Chapter 209 of the Acts of Assembly of 1941. It was contended that this Act was void for two reasons:

(1) It created arbitrary and illegal discriminations.

(2) It was never properly signed by the Governor.

The Court below held the Act void for the second reason only and ordered an injunction to issue. From this decree the case came here on appeal. It was first heard in the April term 1942. This Court was unanimous in its view that the Act attacked was a valid exercise of legislative power, and not subject to successful attack on the first ground alleged. On the second question, the Court was divided, the majority at that time holding that the Act had not been properly signed by the Executive. At the request of the appellants, a re-argument was granted, and the case was heard again in the current term on the second question alone.

his question raises the point that the Act, made effective by its terms on May 1, 1941, was not signed until May 26, 1941 at which time, it is claimed, the Governor had no longer the power to affix his signature, and by so doing could not make it a valid law, effective from either May 1, 1941 or from May 26, 1941.

To put into effect a valid law, it is necessary in the first instance for the Legislature to pass the bill; to have it sealed with the Great Seal of the State; and to present it to the Governor. The duty of the Governor does not begin until it is so presented. Hamilton v. State, 61 Md. 14. After it has been presented to the Governor, there are three ways in which such a bill may become a law: (1) By being signed by the Governor. (2) By being passed over his veto. (3) By his failure to return the bill within six days after its receipt by him unless the General Assembly has adjourned and thereby prevented its return. Warfield v Vandiver, 101 Md. 78, 113, 60 A. 538; Nowell v Harrington, 122 Md. 487, 89 A. 1098. In the case before us, the Legislature had adjourned before the bill was presented to the Governor, and, therefore, under the provisions of the Constitution, Article II, Section 17, it could only become a law by the signature of the Governor.

In the years immediately following the approval of the Constitution of 1867, it was generally supposed that a bill could not be presented to the Governor after the Legislature had adjourned. The veto power was a new departure in this State, having been given to the Executive for the first time in 1867. The Proprietary had been given the power to initiate laws by the Charter. (Charter of Maryland, VII.) When the free-men of Maryland first met, they started to initiate laws themselves, and the Proprietary at once disapproved them and presented a body of laws of his own which the free-men just as promptly disapproved. The Proprietary receded from his position of standing on the wording of the Charter, but always insisted upon his right to veto, and frequently exercised it. This veto power was the occasion of bitter controversies between the House of Burgesses and the Proprietary and the Governors of the province appointed by him. It was perhaps with these controversies in mind that the Convention of 1776 gave the Governor of the newly-formed state no powers of veto. This situation continued for 81 years until the present Constitution was adopted. It appears from the wording of the section adopted in 1867 giving the veto power, that the balance of power had shifted and the Legislative Department was more powerful than the Executive or Judicial. The veto power was to be a curb on it.

In discussing it, one of the members of the Convention said that the power was to be conferred to prevent the deferring of all legislation until the heel of the session, and that it would compel the Legislature to pass the laws and to present them to the Governor in time. Perlman's Debates of Md. Constitutional Convention of 1867, Page 188. The view of this member that bills must be presented to the Governor before the adjournment of the Legislature was the view taken by the Supreme Court with respect to the veto provisions of the Federal Constitution. It has also been held by the Courts in other states with respect to similar provisions of their Constitutions. It was the practice in this state, apparently, until 1880. Dissenting Opinion of Judge Robinson in Lankford v. Somerset County, 73 Md. 105, 127, 20 A. 1017, 22 A. 412, 11 L.R.A. 491.

In 1883 a case came to this Court involving the necessity of sealing a bill with the Great Seal before its presentation to the Governor, and it was held that a presentation without the Seal was not good. Hamilton v. State, 61 Md. 14. At the next session of the Legislature, there was passed the act which is now Section 42 of Article 41 of the Annotated Code. It provided the method of presentation and by whom it should be made. The pertinent part of that statute is: 'Every bill, when passed by the general assembly, shall be returned to the house in which the same originated, and shall, as soon thereafter as practicable, be sealed with the great seal by the secretary of the senate or chief clerk of the house of delegates, as the case may be, and presented to the governor for his approval.'

In 1890, Laws 1890, c. 538, the act providing for the Australian Ballot was passed, and this highly controversial measure was immediately attacked in the courts. The Legislature had adjourned on March 31, the bill was presented to the Governor on April 4, and was signed by him on April 8. The immediate question was whether, under the Constitution and under the statute of 1884, a bill could be presented to the Governor after the Legislature had adjourned. The Court divided on the question, but the majority held that it could, reciting that such practice had obtained since, as well as before, the passage of the Act of 1884. Lankford v. Somerset County, 73 Md. 105, 20 A. 1017, 22 A. 412, 11 L.R.A. 491. That decision has been approved by this Court in a later case, Johnson v. Luers, 129 Md. 521, 99 A. 710, and after a lapse of more than 50 years, it cannot and should not now be disturbed, and the validity of thousands of laws brought into question.

The Act of 1884 was also before the Court with respect to the question as to how soon an act must be presented to the Governor, and the Court said: 'But these words, 'as soon thereafter as practicable,' are of a relative and dependent character, to be controlled more or less by the circumstances of the case, and by no means furnish a definite and fixed rule.' Lankford v. Somerset County, 73 Md. 105, 20 A. 1017, 1091, 22 A. 412, 11 L.R.A. 491. In the later case above quoted, not only was the decision of this question approved, but it was clearly indicated that 'practicable' did not mean practicable for the officials of the Legislature but practicable for the proper consideration by the Governor. Johnson v. Luers, 129 Md. 521, 99 A. 710. There is, therefore, no constitutional or statutory limit to the time, after passage, within which a bill must be presented to the Governor. It is a practical question, depending for its answer in each case on the circumstances of that particular case.

The act having been duly passed, presented and signed, the next question is when it takes effect. The old English common law rule was that acts of Parliament took effect on the first day of the session at which they were passed. That rule was exceptionally harsh, produced great injustice, and permitted the passage of ex post facto laws under which a person could be tried for doing something with was not a crime when he did it. That rule was changed in England by the statute 33rd Geo. III, Chapter 13, passed in 1793, but, of course, that statute is not in force in this country as it was passed after the Revolution. The general American rule, however, has been that statutes take effect on the date of their passage unless otherwise restricted by some constitutional limitation. Cooley on Constitutional Limitations, 8th Edition, Volume I, Page 326; Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522; Concurring Opinion of Judge Bryan, Lankford v. Somerset County, 73 Md. 105, 122, 20 A. 1017, 22 A. 412, 11 L.R.A. 491. There is no provision in our Constitution which fixes the date on which an act shall become effective. There are two provisions which prevent acts from becoming effective until June 1 next after passage unless the Legislature provides otherwise. These are Section 31 of Article III and Section 2 of Article XVI. The act before us was passed in accordance with the latter Article and in the manner required to fix an effective date before June 1. This it was entirely competent for the Legislature to do.

When the Legislature passed the act now known as Chapter 209 of the Acts of 1941, it must be presumed to have passed it in the knowledge that under the Constitution, under Article 41 Section 42 of the Code, and under the construing decisions, it need not be presented to the Governor prior to May 1, and...