State v. Joseph

CourtSupreme Court of Alabama
Citation57 So. 942,175 Ala. 579
Decision Date21 December 1911

Rehearing Denied Feb. 15, 1912.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Information in the nature of quo warranto by the State, on the relation of C. E. Crenshaw, Jr., and another, against E. B. Joseph and others. From a judgment for defendants, relators appeal. Affirmed.

Simpson and McClellan, JJ., dissenting.

Arrington & Houghton, for appellants.

W. A Gunter and John v. Smith, for appellees.


This information in the nature of quo warranto was filed by the appellant Crenshaw, in the name and behalf of the state, and sought a judicial determination to the effect that defendants were not entitled to hold office as commissioners for the city of Montgomery, as they were assuming to do. By their answer, defendants justified their assumption of official power and functions under an appointment by the Governor alleging that their said appointment was made in pursuance of the act "to provide and create a commission form of municipal government and to establish same in all cities of Alabama," etc.; the same being shown at pages 289-315 of the printed volume of the General Acts of 1911. The act here referred to provides for a commission of five, to consist of the then mayor and four others to be appointed by the Governor, who should exercise all the powers of the municipal government. The legislative history of this act, as evidenced by the journals of the two houses of the Legislature and the enrolled act on file in the office of the Secretary of State is the history of an unimpeachable exercise of legislative power, as all parties concede, in every respect save one. At one point, a difference of opinion has arisen out of facts which we will here state: House Bill 323, out of which the act in question was developed by a course of legislative action, provided for a commission of three, to consist of the mayor and two others, who should be elected by the people. In this shape, the bill passed both houses and was signed by the Speaker of the House of Representatives and the Lieutenant Governor, presiding officer of the Senate, on March 22, 1911. The journal of the House next shows that on March 31st, the House being then in session, "the House concurred in and adopted the amendment offered by the Governor to the H. Bill 323, said Governor's amendment being as follows;" and here the amendment, which provided, among other things, for a commission of five, is set out at length. The Governor's message bears date March 31, 1911, and was spread upon the journal in pursuance of the Constitution (section 125), which requires in such cases that the House in which the bill originated, and to which it is returned, "shall enter the objections at large upon the journal and proceed to reconsider" the bill. In the meantime, as the journals show, the Legislature, on March 22d, adjourned to the 24th, and on the 24th to the 29th, and on the 29th to the 31st. Of intervening days, March 26th fell on Sunday. The appellant's contention is that, under the Constitution, the bill became a law in its original shape by reason of the Governor's failure to sign or return the same, with the amendments of his proposal to the House of Representatives, within six days; and that what further was done with the bill is of no consequence, as being wholly without the power of the Legislature.

So much of the Constitution as is necessarily involved in the decision of the question presented reads as follows: "Every bill which shall have passed both houses of the Legislature, except as otherwise provided in the Constitution, shall be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon the journal and proceed to reconsider it. * * * If any bill shall not be returned by the Governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent the return, in which case it shall not be a law; but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after the reassembling, otherwise it shall become a law." The authorities are unanimous in holding that the adjournment of the Legislature contemplated in the quoted clause of the Constitution is a final adjournment. It seems necessary, also, to hold that the limit of time during the session--that is, where there has been no final adjournment--within which the Governor shall return a bill in order to prevent it becoming a law without his approval and signature, or, perhaps, it would better express the intent of the provision to say the period of time during which the Governor has the right to consider a bill without its becoming a law independently of him, must be measured by calendar days; for otherwise there would be no reason for excepting Sunday, on which day it is not the practice of legislative bodies in this country to sit for the business of legislation. When occasionally Legislatures have found it convenient or necessary to extend their sessions over into Sunday, it has been treated as an extension of the previous day. But the sixth must be a legislative day also; for the Governor has six days in which he may consider the bill, and the requirement is that the bill, in case it be not approved, be returned to the house in which it originated. No congregation of the members of a house can, in a constitutional sense, constitute the House during the period of a recess, or exercise any of its constitutional functions. Nor can the return be made to any officer of the House when it is not in session. As was aptly said by Gov. Jones in a message to the Senate in 1893: "A message from the executive to either branch of the Legislature, delivered to an officer of the body, who may not even be a member, and when it is not in session, for transmission and delivery to 'the House' when it shall reconvene, is an anomaly in parliamentary law. Messages from the executive to either branch of the General Assembly are invariably delivered to the House while in session, and not to the officers for them. Such has been the immemorial usage, and the same custom obtains concerning messages from one house to the other. There is neither parliamentary nor statute law which confers any functions upon the secretary or clerk of either house, while they are in recess, concerning the reception of messages from the other house or from the executive. Parliamentary law absolutely divorces clerks and secretaries from such functions, and is so exacting in this regard that one house will not receive a message from the other if the house sending the message is not in session. Indeed, it would seem that the express language of the Constitution, which requires the return 'to the House,' would repeal any parliamentary or statute law or custom, if such had obtained, whereby the return might be made to the clerk or secretary of the House, while it was not in session, for delivery to it when it reconvenes." Sen. Jour. 1892-93, 304-310. Like considerations, and others arising out of the fact that during the period of a recess the Governor may find it exceedingly inconvenient, if not impossible, to communicate with the presiding officers of the houses, not to mention the element of unseemliness which may find its way into such an effort, lead to the conclusion that a bill may not be returned to the Speaker of the House or the presiding officer of the Senate in recess. So, then, a bill must be returned to the House while in session, which is to say that the sixth and last day during which the Governor may retain a bill without its becoming a law, if he sees fit to exercise his right of examination to the utmost, must be a legislative day. We conclude, also, that if the house in which a bill originated is in session on the sixth day after a bill has been presented to the Governor, so that the Governor has then an opportunity to return the bill, and there is a failure to return it, his constitutional right to return is exhausted. Any other rule would lead to the result that, with the daily passage of bills originating in either house, the limitation of time would be ineffectual, unless the Legislature should each day remain in session until the last minute of the day--a result not contemplated, of course. But where a return is prevented by recess--an adjournment, not final, but for more than a day--the two days after the reassembling in which the bill may be returned must of necessity be legislative days. On one the house reassembles as an organized body; on the other the bill may be returned to the house so organized.

Relator offered to show by a memorandum made at the time upon the bill by the Governor's recording secretary, and by other parol proof, that the bill reached the Governor's office and was delivered into the hand of his recording secretary on March 22d, and that this was the customary way of dealing with bills. The bill is not traced directly to the Governor's hand or notice before the 31st, the day on which he returned it to the House. If these facts constituted a presentation to the Governor, within the meaning of the Constitution, and if no rule of law or imperative policy such as has always prevailed in cases of the character and in view of which the Constitution may be regarded as having been framed, stood in the way of a resort to parol evidence of them, then consideration of the dates to which we have referred, in connection with the interpretation given already to the...

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