State v. Glenn

• Decision Date: 29 June 1883
• Citation: 1 P. 186,18 Nev. 34
• Parties: STATE ex rel. JAMES CARDWELL v. M. M. GLENN and others.
• Court: Nevada Supreme Court

1 P. 186

18 Nev. 34

STATE ex rel. JAMES CARDWELL v. M. M. GLENN and others.

Supreme Court of Nevada

June 29, 1883

The provision in the constitution that all bills shall be signed by the clerk of the house and secretary of the senate is not directory, but mandatory, and such signing is essential to its validity as a law.

A bill signed by the assistant secretary of the senate, an officer authorized by law to take the place of and discharge the duties of the secretary in his absence, substantially complies with the requirement of the constitution,--the duty of signing the bills devolving not upon the individual, but upon the officer; and he who by law acts in the capacity of secretary, is, to all intents and purposes, the secretary. This construction being deliberately given by the executive and legislative branches of the government, is entitled to great weight in controlling the decision of this court.

An authority to an officer of a corporation "to convey land to purchasers at his discretion," is a sufficient authority to donate land; the word "purchasers" being taken in its broadest sense.

HAWLEY C.J.

This proceeding was instituted for the purpose of compelling respondents "to issue bonds for the purpose of creating a fund for the erection of county buildings." St. 1883 p. 104. Its real object, however, is to determine whether the "act to remove the county seat of Esmeralda county from the town of Aurora to the town of Hawthorne" (St. 1883 p. 95) is valid.

Respondents claim that this act is invalid because the enrolled bill is not attested by the signature of the secretary of the senate. The bill was signed by the presiding officers of the respective houses, by the chief clerk of the assembly, and by the assistant secretary of the senate. As thus attested, it was approved by the governor and regularly deposited with the secretary of state.

Section 18 of article 4 of the constitution declares that "a majority of all the members elected to each house shall be necessary to pass every bill or joint resolution, and all bills or joint resolutions so passed shall be signed by the presiding officers of the respective houses, and by the secretary of the senate and clerk of the assembly."

Relator claims that this provision--relative to the signing of the bill--is directory merely. This view, in the light of the decision in State v. Swift, 10 Nev. 176, cannot be maintained. It was decided in that case that the courts could not look beyond the enrolled act certified to by those officers who are charged by the constitution with the duty of deciding what laws have been enacted, and that when an act has been signed by the proper officers of each house, approved by the governor, and filed in the office of the secretary of state, "it constitutes a record which is conclusive evidence of the passage of the act as enrolled." The necessity of having some fixed and definite rule by which the existence of a law may be established, is so thoroughly and ably discussed in that opinion that it needs from us no further comment. If the rule of evidence as there established is right,--and its correctness is not questioned by relator,--then it follows, as clearly as the light follows the day, that the provisions of the constitution as to the signing of bills and joint resolutions is mandatory, and must be complied with, otherwise there is no evidence of the passage of a bill or joint resolution by the legislature that can be considered by the courts.

Nearly all of the decisions cited by relator, to establish the doctrine that this provision of the constitution is directory, were examined and several of them reviewed in State v. Rogers, 10 Nev. 250. We shall not, therefore, again enter into the general discussion of this subject, but will confine ourselves to such questions as have a direct bearing upon the particular question here presented. When the acts required to be done are of the essence of the thing, the provisions of the constitution, whether negative or affirmative in their terms, are imperative. Things which are not of the essence may be declared directory. The provision in question might be held directory by the courts in the various states where it has been decided--in opposition to the rule announced in State v. Swift--that the courts could look at the journals of the respective houses in order to determine whether any act had been passed by the legislature. The signature of one officer or of all the officers might be omitted without invalidating the law. Cottrell v. State, 9 Neb. 128; [S. C. 1 N.W. 168;] Com'rs v. Higginbotham, 17 Kan. 75. But it cannot consistently be said, by a court which adheres to the principles announced in State v. Swift, that this provision is merely directory. We cannot look at the journals in order to determine whether the bill received the constitutional majority necessary for its passage. We must look to the enrolled bill, and to that alone. The constitution says that if the bill received the requisite majority it "shall be signed by the presiding officers of the respective houses, and by the secretary of the senate and clerk of the assembly." What was the object of this provision? There can be but one answer. It was to furnish the evidence that the bill thus attested had regularly passed the respective houses. It was intended that the bill thus attested, when signed by the governor and deposited with the secretary of state, should upon its face furnish the evidence necessary to make it a law. The signing of the bill by the officers designated in the constitution is absolutely essential to its existence as a law.

"This is the mode adopted for the authentication of every bill." Pacific Railroad v. The Governor, 23 Mo. 364. The governor's signature to a bill is not required as a means or part of its authentication, but as evidence of his approval. Cooley, in speaking of the signing of bills, says: "This is a constitutional requirement in most of the states, and therefore cannot be dispensed with." Cooley, Const. Lim. § 153. Burroughs, upon the same question, says: "There are constitutional provisions requiring all laws to be signed by the speakers of both houses. Where this provision exists in the constitution of a state, it is essential to the validity of an act in that state that the bill should be duly signed." Burroughs, Pub. Sec. 425.

The constitution of Indiana requires that a bill which passes each house "shall be signed by the presiding officers of the respective houses." The supreme court, referring to this provision, use the following language: "What, then, was the purpose in requiring this attestation by the presiding officers? Was it intended as an idle form?" It is not fair to so assume. What possible object, then, was sought to be accomplished by it, unless it was to furnish evidence that the paper thus attested had been, by the proper processes of each house, clothed with the force of law,--evidence upon the enrolled act itself, which should be taken as authentication and prove itself upon inspection?" Evans v. Browne, 30 Ind. 523.

This brings us to the question whether the act under consideration is signed by the proper officers. Is the signature of the assistant secretary a substantial compliance with the provision of the constitution? Did the framers of the constitution intend that all bills should be signed by the chief clerk and the principal secretary, or was it their intention to allow this duty to be performed by their assistants when acting, as they often do, in the capacity of clerk and secretary of the respective houses? This provision of the constitution should be construed with reference to existing customs in legislative and parliamentary bodies.

The duties pertaining to the offices of secretary and assistant secretary, as prescribed by statute, should also be considered. At the time of the adoption of the constitution it was the custom of legislative bodies to have an assistant secretary of the senate and assistant clerk of the house. In the very nature of the office, independent of any statute the assistant might take the place of the secretary or chief clerk, and for the time being discharge his duties. It is the duty of the secretary to be present during the entire session. If he neglects this duty, or is incompetent, he may be removed. 2 Comp. Laws, 2730. But the legislature of this state, with the experience of other legislative bodies, foresaw that, without any fault upon his part, he might not, at all times, be able to attend to all the duties required of him, and provided for an assistant. Cases of emergency might arise. The secretary might be ill, or, for some unavoidable cause, be temporarily called away. Leave of absence for the day might, for good cause shown, be granted him. The assistant could then be called to his desk, take his place, and discharge his duties. While acting in that capacity is he not, to all intents and purposes, the secretary? If in this official capacity he calls the roll of the senate and keeps the yeas and nays on the passage of the bill, is he not, by virtue of the provisions of the constitution, authorized to attest the vote so taken? Why not? He is authorized by law to discharge the duties pertaining to the office of secretary. He may call the roll and keep the tally of the votes. When he discharges this duty he is, in his official capacity, advised of the passage of the bill. The constitution does not impose the duty of signing bills and joint resolutions upon the individual, but upon the officer. It is the officer who is authorized to act as secretary that must attest the bills and joint resolutions. When the assistant so acts, does not the constitution mean that he may sign the bills and joint resolutions, and that...