State ex rel. State Pharmaceutical Association v. Michel

• Decision Date: 19 February 1900
• Docket Number: 13,281
• Citation: 52 La.Ann. 936,27 So. 565
• Court: Louisiana Supreme Court
• Parties: STATE EX REL. STATE PHARMACEUTICAL ASSOCIATION ET AL. v. JOHN T. MICHEL, SECRETARY OF STATE

27 So. 565

52 La.Ann. 936

STATE EX REL. STATE PHARMACEUTICAL ASSOCIATION ET AL. v. JOHN T. MICHEL, SECRETARY OF STATE

No. 13,281

Supreme Court of Louisiana

February 19, 1900

March 1900

Rehearing refused.

APPEAL from the Fifteenth Judicial District Court, Parish of East Bation Rouge. -- Brunot, J.

Albert Voorhies, for Plaintiff, Appellant.

Milton J. Cunningham, Attorney General, (Charles M. Cunningham, of Counsel), for Defendant, Appellee.

OPINION

BLANCHARD J.

This is a proceeding by mandamus to compel the Secretary of State to promulgate as a law, duly enacted, an act of the General Assembly of the State of Louisiana, known as "House Bill No. 46" entitled "An Act to Amend and Re-Enact Act No. 66 of the Acts of 1888, entitled "An Act to Regulate the Practice of Pharmacy; to regulate the sale of compounded medicines and drugs, preparations and prescriptions; to regulate the sale of poisons; to create a State Board of Pharmacy, and to regulate the emoluments thereof; to prevent the practice of pharmacy by unauthorized persons, and to provide for the trial and punishment of violators of this act by penalties and through civil process, and to repeal all laws contrary to, or in conflict with any of the provisions of this act."

The contention of the relators is that at a late session of the General Assembly the aforesaid bill duly passed both Houses and was on the 8th of July, 1898, signed by the Speaker of the House of Representatives and by the Lieutenant Governor and President of the Senate; that the enrolled copy of the bill so signed was presented to the Governor of the State on the same day, July 8, 1898, for executive approval; and that the act not having been returned by the Governor within five days thereafter, the General Assembly continuing in session, it had become a law as though the executive signature in approval thereof had been attached.

The further contention is that application was made to the Secretary of State to promulgate the act in accordance with law, and that he refuses to do so.

To the preliminary writ, requiring him to show cause why the act should not be promulgated, the Secretary of State, through the Attorney General, answers, in effect, that he should not be required to promulgate the act as a law of the State for the reason that the same was vetoed by the Governor within five days after he received the same at the hands of the Messenger of the House, and was not, subsequently, passed by the action of the two houses of the General Assembly, the Governor's veto to the contrary notwithstanding.

The case was tried below on the following admission of facts:

"It is admitted that House Bill No. 46, after being signed by the Speaker of the House and Lieutenant Governor on the 8th of July, 1898, was carried to the Governor's office about ten or eleven o'clock on the night of July 8th. That the Governor's private secretary had gone home and that the Governor declined to receive the bill at that hour. That this bill was in a batch containing a large number as shown by the receipts; that on the next day, July 9th, the bills were delivered to the Governor, and he signed a receipt which had been prepared on July 8th without noticing the date. That the engrossed copy of the bill, along with the copies of the other bills included in the same receipt, was delivered to the Secretary of State at four P.M. on July 9th, as shown by memorandum made by the Secretary of State at that time. That the Secretary of State also signed a receipt for this bill, together with the other bills, dated July 8th, without noticing the date.

"It is further admitted that the Governor's veto reached the House of Representatives at eleven-twenty P.M. on July 14th, just before adjournment, and that the House did finally adjourn that night at twelve o'clock without acting on the veto. That the Governor takes no note of the hour that a bill is received or the hour when a veto is sent in. But the Secretary of State noted the hour that he received the engrossed copy of House Bill No. 46, and the Clerk of the House noted the hour at which the veto came in."

There was judgment refusing to make the writ peremptory and dismissing the action at relators' cost.

This appeal followed.

The question first arising for determination is what constitutes a presentation of an act of the General Assembly to the Chief Executive for his action, under the Constitution.

If the act known as "House Bill No. 46" were, in the constitutional sense, presented to him on July 8th, and he did not return the same with his veto to the House in which it originated until more than five days after such presentation, then the act must (unless an intervening Sunday -- one of the five days -- is excepted from the computation) be considered as having become a law, and the veto without effect to prevent that consummation.

Article 41 of the Constitution is imperative that: "As soon as bills are signed by the Speaker of the House and President of the Senate, they shall be taken at once, and on the same day, to the Governor by the Clerk of the House of Representatives, or Secretary of the Senate."

The bill in question was signed by the Speaker of the House and President of the Senate on July 8th, 1898. It, therefore, became the duty of the Clerk of the House to take it at once, on the same day, to the Governor and he did so. It was between ten and eleven o'clock at night, it is true, but the Governor was in his office at the Capitol building and it was "the same day" on which the presiding officers of the two Houses had attached their signatures to the bill.

If the Clerk of the House had not taken the bill that day, at once after its signature by the presiding officers of the two Houses -- certainly before twelve o'clock midnight -- to the Governor, he would have failed in the duty prescribed for him by the organic law.

Article 76 of the Constitution declares that: "Every bill which shall have passed both Houses shall be presented to the Governor. If he approve it, he shall sign it; if not, he shall return it, with his objections in writing, to the House in which it originated, etc."

The language is "every bill * * * shall be presented to the Governor."

Here, the bill was carried to the Governor's office; it was at night; the Governor's private secretary had gone to his home, but the Governor himself was there; the Clerk of the House made known the object of his visit; the Governor declined to receive the bill; the clerk withdrew and returned with the bill the next day, July 9th, 1898, when it was received by the Governor and a receipt signed dated July 8th, 1898. It seems this receipt had been prepared by the clerk the evening previous, expecting the bill to be then received by the Governor, and the next day when it was signed the date was not noticed.

Undoubtedly the object of the Clerk of the House in going to the Executive office on the night of July 8th was to fulfill his constitutional duty of presenting the bill to the Governor on the same day on which the presiding officers of the two Houses had signed it. When he made known the purpose of his visit to the Governor and tendered the bill, it was a presentation of it in the constitutional sense, and the fact that the Governor declined to then receive it did not render nugatory and ineffective this presentation.

To hold otherwise would put it in the power of the Chief Executive to delay at will the presentation of a bill to him, something the Constitution is careful to guard against.

"If any bill," says the last clause of Article 76 of the Constitution, "shall not be returned by the Governor within five days after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by adjournment, shall prevent its return, in which case it shall not be a law."

The mandate of the organic law is not that the Governor must act, in the way of a veto, within five days of his reception of a bill, but within five days of its presentation to him.

If it were the first, he might by not receiving a measure hold it up until within five days of the end of a session of the General Assembly, then receive it, and the adjournment taking place would prevent its return, thus defeating its becoming a law, or in case it was returned with a veto message just prior to adjournment, action on the veto by the two Houses would be prevented.

But the presentation of the measure being made to him -- an offer of it to him, a tender of it to him -- it can make no difference that he does not receive it. The constitutional requirement is fulfilled and from that moment the delay begins to run and he must act, if his purpose be to veto, within five days.

See Opinion of Justices, 45 N.H. 611, et seq.

The bill in question having been presented on July 8th, the Governor was entitled to "five days" for its consideration. Within that period he must return it with his objections, or else it becomes a law the same as if he had signed it, unless the General Assembly, by adjournment, shall prevent its return, etc.

"Adjournment" as here used means final adjournment at the close of the session; not adjournment for the day, or for several days during the session.

Opinion...