State ex rel. Sullivan v. Dammann

• Decision Date: 02 June 1936
• Citation: 221 Wis. 551,267 N.W. 433
• Parties: STATE EX REL. SULLIVAN v. DAMMANN, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

221 Wis. 551

267 N.W. 433

STATE EX REL. SULLIVAN

v.DAMMANN, SECRETARY OF STATE.

Supreme Court of Wisconsin.

June 2, 1936.

Appeal from an order of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Reversed.

FRITZ, J., dissenting.

In this action, commenced November 26, 1935, the petitioner, Marie A. Sullivan, seeks to compel Theodore Dammann, as secretary of state, to publish, or cause to be published, bill No. 56 S, which was passed by the 1933 Legislature, and which, she asserts, became a law upon the failure of the Governor to return it with his objections to the House in which it originated within six days (Sundays excepted) after it was presented to him; no adjournment of the Legislature having prevented its return.

The facts alleged in the petition may be summarized as follows:

The petitioner is a teacher by profession. The defendant is the secretary of state. One of the duties of the secretary of state is to publish, or cause to be published,bills which have been duly passed by the Legislature and which have become laws by virtue of the failure of the Governor to exercise his veto power within the time specified in the constitution of this state. Bill No. 56 S appropriated a sum of money to compensate the petitioner for services performed as a teacher at the Milwaukee State Teacher's College. The bill originated in the Senate, was thereafter amended and passed by that body. It was then transmitted to the Assembly, concurred in by that body, and returned to the Senate. On July 11, 1933, at 10:30 o'clock in the forenoon, the Senate reported the bill correctly enrolled. At 3:37 o'clock in the afternoon of that day, the bill was presented to the Governor. On July 15, the Senate and Assembly, pursuant to joint resolution No. 136 S, recessed or adjourned to July 22. On July 20, the Governor vetoed the bill, and thereafter, on July 22, returned it to the Senate with his objections. The petitioner has made due demand upon the defendant as secretary of state that he publish, or cause to be published, the bill as passed by the Legislature; but the defendant has failed, neglected, and refused so to do. The refusal of the defendant to comply with her demand has caused her irreparable injury. The petitioner has duly demanded of the Attorney General that he commence this action, but he has failed so to do. The petitioner's only remedy is this action of mandamus. The petitioner prayed that a writ of mandamus issue commanding the defendant, as secretary of state, to publish, or cause to be published, as a law the said bill. Upon the filing of the petition in the circuit court, an alternative writ of mandamus issued. The defendant moved to quash the writ because the petition did not state facts sufficient to constitute a cause of action against him. The circuit court granted the defendant's motion and ordered that the alternative writ of mandamus be quashed. From that order dated January 24, 1936, the petitioner appealed.

John J. Sullivan, of Milwaukee, for appellant.

James E. Finnegan, Atty. Gen., and Leon E. Isaacson, Asst. Atty. Gen., for respondent.

NELSON, Justice.

The sole question for decision is whether bill No. 56 S became a law by virtue of the failure of the Governor to return it with his objections to the House in which it originated within six days (Sundays excepted) after it was presented to him. A determination of that question requires a construction of article 5, § 10, of the Constitution of this state. That section is as follows: “Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large upon the journal and proceed to reconsider it. * * * If, after such reconsideration, two-thirds of the members present shall agree to pass the bill, * * * it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the members voting for or against the bill * * * shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within six days (Sundays excepted) after it shall have been presented to him, the same shall be a law unless the legislature shall, by their adjournment, prevent its return, in which case it shall not be a law.”

The language which particularly requires construction has been italicized. Clearly, the governor did not return the bill with his objections to the Senate, the House in which it originated, within six days (Sundays excepted), and the bill therefore became a law unless the Legislature, by their adjournment on July 15, 1933, prevented its return. So the precise question which must be determined is whether the temporary adjournment of the Legislature on July 15, pursuant to joint resolution No. 136 S, was such an “adjournment” as prevented the return of the bill. So much of said resolution as need be considered, is as follows:

“Resolved by the senate, the assembly concurring, That the legislature adjourn sine die at 11:00 A. M., on Tuesday, July 25, 1933. Be it further

Resolved, That when the two houses of the legislature adjourn on this day, July 15, 1933, they adjourn until Saturday, July 22, 1933, at ten o'clock, A. M.”

The resolution obviously provided for two different adjournments: (1) A sine die adjournment of the Legislature; (2) a temporary adjournment of the two Houses for more than three days.

The petitioner contends that the phrase, “unless the Legislature shall, by their adjournment, prevent its return,” relates only to a final or sine die adjournment of the Legislature, and that the only adjournment which can prevent a return of a bill by the Governor within six days is such an adjournment. The defendant contends that that phrase should be construed to apply to an adjournment of either House for less than three days or to an adjournment of either House for more than three days with the consent of the other, as well as to a final or sine die adjournment of the Legislature. So this controversy hinges upon the question whether the word “adjournment,” found in section 10, means sine die adjournment of the Legislature, or both a sine die adjournment of the Legislature and a temporary adjournment of either or both of the Houses. The word “adjournment” occurs only in article 5, § 10, but the word “adjourn” occurs in article 4, §§ 7 and 10. So much of section 7 as is material, provides: “And a majority of each [house] shall constitute a quorum to do business but a smaller number may adjourn from day to day.”

So much of section 10, as is material, provides: “Neither house shall, without consent of the other, adjourn for more than three days.”

It is clear that the word “adjourn,” as found in sections 7 and 10, relates to temporary adjournments of either or both Houses, while the word “adjournment” mentioned in article 5, § 10, relates to the adjournment of the Legislature.

A perusal of the proceedings of the Convention which framed the Constitution sheds no light upon the question here presented. No question seems to have arisen in the minds of the framers as to the meaning of the word “adjournment” as found in section 10, art. 5 of the Constitution of this state. That section is so like the phraseology of article 1, § 7 (second clause) of the Constitution of the United States as to impel the conclusion that it was borrowed from that instrument and adopted by the framers without much, if any, discussion.

An examination of the joint rules of the Senate and Assembly, adopted by early Legislatures, reveals no rule which in any sense might now be regarded as a practical construction of section 10. Apparently not until May 31, 1911, was the Attorney General of this state called upon to render an opinion concerning a situation similar to the one here. On that day Levi H. Bancroft, Attorney General, rendered an opinion to Governor McGovern to the effect: (1) That the Governor had the right to return a bill with his objections at any time on the sixth day after it was presented to him, even though the Legislature was not in session on that day, it having theretofore temporarily adjourned pursuant to a joint resolution; and (2) that the clerk of the Senate had authority to receive the bill and the Governor's objections thereto, notwithstanding the fact that the Legislature had temporarily adjourned or recessed. Biennial Reports and Opinions, 1912, p. 122.

In March, 1921, Governor Blaine returned bill No. 55 S to the Senate with his objections. The question arose whether the bill had become a law by reason of his failure to return it within six days after it was presented to him. That bill was presented to the Governor on March 5, 1921, at 4:35 in the afternoon. It remained with him until March 14, 1921, at 3:15 in the afternoon when it was returned to the Senate. On March 11, pursuant to a joint resolution adopted by the Senate and Assembly, both Houses adjourned or recessed until March 15. Upon the request of the chairman of the Judiciary Committee of the Senate, William J. Morgan, Attorney General, rendered an opinion to the effect that the recess or adjournment of the two Houses from March 11 to March 15 was not such an adjournment as prevented the return of the bill within the six days, and that the bill had therefore become a law. O.A.G., Vol. X, p. 256. Mr. Morgan's opinion seems not to have settled the controversy so far as either the governor or the senate was concerned. Opinions by M. B. Olbrich, executive counsel, and by Harry Sauthoff, the Governor's private secretary, were submitted, in which conclusions quite contrary to those of the Attorney General were...