Wrede v. Richardson

• Decision Date: 19 November 1907
• Docket Number: 10548
• Citation: 77 Ohio St. 182,82 N.E. 1072
• Parties: Wrede v. Richardson, Auditor, Et Al.
• Court: Ohio Supreme Court

82 N.E. 1072

77 Ohio St. 182

Wrede v. Richardson, Auditor, Et Al.

No. 10548

Supreme Court of Ohio

November 19, 1907

Presentation of bills, passed by general assembly, to governor - Proof of presentation - Record in office of governor admissible - Enactment can not be impeached by parol evidence - Evidence of disability of governor inadmissible, when - Article 3 Section 15, of Ohio constitution.

1. An entry in a record which is kept in the office of the governor pursuant to a requirement of law and with his acquiescence used to perpetuate evidence of the presentation to him of bills which have been passed by both houses of the general assembly, the entry being made by a subordinate of the governor in the discharge of duties prescribed by him and showing the presentation of an identified bill on a day named, is competent and sufficient to prove such presentation.

2. The enactment of an officially promulgated statute can not be impeached by parol evidence.

3. The governor not having relinquished the duties of his office in view of a disability recognized by him, and there being no authorized procedure to ascertain that a disability has intervened, it is not competent upon an issue as to the valid enactment of a statute to show that upon the day of its presentation to him and for ten days thereafter he was, by reason of illness, disabled to receive or consider it so as to give effect to the provision of the 15th section of the 3d article of the constitution that in case of the disability of the governor the duties of his office shall devolve upon the lieutenant governor.

The plaintiff, who was engaged in the business of trafficking in intoxicating liquors, filed his petition in the superior court against the defendants, who are the auditor and treasurer, the taxing officers, of Hamilton County, for a decree enjoining them from assessing and collecting a tax upon his business in excess of $350 for the year commenc- ing May 28, 1906, a tax of that amount being assessable under former legislation of admitted validity, the excess of $650 above that sum, which the auditor proposed to assess, having no authority except the Act of March 28, 1906 (98 O. L., 99), whose constitutional validity is challenged in the present case upon the ground alleged in the petition that it was never presented to the governor as required by the amendment to Article II, Section 16, of the constitution adopted in November, 1903. The case proceeded to trial upon an issue as to the presentation to the governor of the bill after it had passed both houses of the general assembly. The court below admitted the record evidence upon the subject of presentation, and excluded all oral evidence offered by the plaintiff to sustain the allegation of his petition that the bill had not been presented to the governor. It was known in the legislative proceedings as House Bill No. 24. It was not signed by the governor, but the superior court found the following facts:

"On consideration thereof the court does find that there appears in the general record of the governor of Ohio, under date of March 28, 1906, the following entry:

"'March 28. H. B. No. 24 presented to governor March 28. Filed secretary of state, April 10, '06.'

"And the court does further find that upon the enrolled copy of said House Bill No. 24, known as the Aikin Law, and published in 98 Ohio Laws, pages 99 to 101, as the same is deposited in the office of the secretary of state of Ohio, there appears the following endorsement:

"'This bill was presented to the governor March 28, 1906, and was not signed or returned to the house, wherein it originated within ten days after being so presented, exclusive of Sundays and the day said bill was presented, and was filed in the office of the secretary of state April 10, 1906.

"'Lewis B. Houck,

"'Secretary to the Governor.'

"The court further finds that there appears in a book entitled 'Minute Book of Acts of the General Assembly messaged to the governor, with his action thereon and disposition thereof,' kept in the office of the governor of Ohio under date of March 28, 1906, the following entry:

"'Mar. 28. H. B. No. 24 became a law on April 10, 1906, lapse of time. April 10. H. M. Shaul.'

"The court further finds that there appears in the office of the clerk of the senate of Ohio, in a book entitled 'Governor's Receipt for Bills,' at page 27 thereof, the following:

"'Executive Department, Office of the Governor,

"'Columbus, Ohio.

"'Receipt of the following bills is hereby acknowledged: H. B. No. 24, Mr. Aikin.

"'C. C. Lemert, Executive Clerk.

"'Date, March 28, 1906.'

"The court therefore finds that the foregoing record with respect to the presentation of H. B. No. 24 to the governor of Ohio is regular and free from fraud.

"The court does therefore exclude and rule out as incompetent and irrelevant all parol evidence offered herein to contradict said entries in the office of the governor of Ohio, and the endorsement on said bill; and all evidence to show that said entries and endorsement were not individually made by the governor of Ohio, or to show that no official proceedings were had or taken by the governor of Ohio during a period of time commencing March 27, 1906, and ending April 11, 1906; or that during said entire period of time commencing March 27, 1906, and ending April 11, 1906, the governor of Ohio was disabled by illness from performing any of his official duties, or to show that said enrolled copy of said H. B. No. 24, bearing the signature of the president of the senate and speaker of the house of representatives, was not personally presented to the governor of Ohio, or placed in his custody.

"It is therefore considered, ordered and adjudged that said House Bill No. 24, known as the Aikin Law (88 Ohio Laws, pages 99 to 101), is a valid law of the State of Ohio, and that the provisions of said law were and are in full force and effect. And it is therefore considered, ordered and adjudged that the petition herein be and the same is hereby dismissed at the costs of the plaintiff, and that the temporary injunction heretofore granted by the court in Special Term be and the same is hereby vacated and dissolved, and the defendants are restored to all things lost by reason thereof.

"To each and all of which findings, rulings, orders, judgments and decrees the plaintiff excepts.

"And thereupon the plaintiff filed his motion in writing, as appears of record, for a new trial, and to set aside the foregoing decision, judgment and decree, and the court having considered the same, does now overrule said motion. To all of which the plaintiff excepts.

"[Duly certified.]"

Upon the facts so found the superior court, being of the opinion that the bill had become a law without being signed by the governor, rendered final judgment for the defendants.

Messrs. Cohen & Mack; Mr. Rufus B. Smith; Mr. Albert Bettinger; Mr. A. J. Freiberg; Mr. Charles A. Groom and Messrs. Rowe, Shuey, Matthews & James, for plaintiff in error.

The constitutional requirement that every bill shall "be presented to the governor" requires his physical possession or control of the enrolled bill for the purpose of affording him an opportunity to examine it and exercise his right of approval, objection, or allowing the bill to become law by failure to approve or object "within ten days after being so presented."

The mere reading of the amendment to Article II, Section 16 (95 O. L., 962), shows that the provision that "every bill passed by both houses of the general assembly shall, before said bill can become law, be presented to the governor," requires the physical possession or control by the governor of the enrolled copy bearing the signatures of the officers of the two houses. It is specifically provided that "if he approves he shall sign said bill," and obviously such act requires his physical possession or control of the enrolled bill. It is specifically provided that "if he object he shall not sign and shall return said bill"; obviously this requires the possession or control of the enrolled bill for the purpose of returning it to the house where it originated. It is specifically provided that "if any bill passed by both houses of the general assembly and presented to the governor is not signed and is not returned to the house wherein it originated and within ten days after being so presented, exclusive of Sunday and the day said bill was presented, said bill shall be law in like manner as if signed"; obviously, it is the enrolled bill of which the governor had physical possession or control, for the purpose of signing or returning it, which thus becomes law.

We are, however, not without judicial decisions upon this subject. The Constitution of the United States and of the other states contain provisions similar to the Ohio provision, the difference being simply as to the time within which the executive is to act.

In every case in which the question has arisen the construction placed by the courts upon such provisions of the constitution, requires the physical possession or control by the governor of the bill, for the purpose of enabling him to approve or object, and the decision holds that until such opportunity is afforded, the bill is not "presented" as required by the constitution. Supplement, 99 Mass. 636; Opinion of the Justices, 135 Mass. 594; Farwell v. City of Boston, 78 N.E. 303; State, ex rel. v. South Norwalk et al., 77 Conn. 257; Harpending v. Haight, Governor, 39 Cal. 189; McKenzie v. Moore, 92 Ky. 216; State, ex rel., v. Deal, 24 Fla. 293; State, ex rel., v. Michel, 52 La. Ann., 936.

In Ohio, it is provided who shall present to the governor a bill passed by the general assembly, and how the time and fact of such...