State Ex Rel. Swirczynski v. Key

The exact question presented herein is before this court for the first time. The writer reluctantly dissents from the opinion of the majority. He feels impelled to state his views of the intent of the constitutional provisions drawn in question.

Section 7, article 6, of the Constitution gives the Governor the power to convoke the Legislature, or the Senate, only"on extraordinary occasions." The language thereof clearly indicates that there must be an exigency to meet which legislation is required, and to await the regular biennial session would occasion great public detriment to the state or some division thereof. Its legislative action, when so convened, is limited by said section in this language: "At extraordinary sessions no subject shall be acted upon except such as the Governor may recommend for consideration."

The entire language clearly imports that the legislation shall be confined to those matters creating theextraordinary occasion which authorizes the Governor to call the Legislature into extra session; and such as the Governor recommends. The word "recommend" in said section means. "advises, or commends for favorable consideration," and necessarily, the message of the Governor advising or commendingfor favorable consideration any legislative enactments must set forth the character and purpose of the proposed legislation occasioning the exigency which warrants an extraordinary session, so as to disclose what the Chief Magistrate believes the good of the commonwealth demands at the hands of such extra session.

When the recommendation is made by the *Page 69 Governor, the Legislature of course is not impelled to enact into law what the Governor thinks the condition of the state requires, for the perfectly apparent and generally known reason that the Legislature is sovereign, within constitutional limitations. But, if the Legislature does adopt and put into legal enactments what the Governor has recommended in substance, such legislation is as effective as law as if passed at a regular biennial session. But the recommendation of the Governor must be sufficiently broad and definite that when the act of the Legislature takes the form of law, if in fact it does, an examination of the recommendation of the Governor and the act of the Legislature thereon, it discloses that the action of the Legislature was within the intendment of the recommendation made by the Chief Executive: otherwise bills passed at such extraordinary session do not rise to the dignity of law. The writer believes that all the authorities, when properly considered, bear this out.

If this conclusion is correct, we must look to the message of the Governor to the extraordinary session claimed to recommend legislation on the subject here involved. Said message bears date of January 29, 1924. We do not comment upon that part thereof urged to the effect that the recommendations must be made to a joint session of both Houses. The particular message in question seems to have been addressed to the respective Houses not in joint session. It begins:

"At the request of certain members of your honorable body, I am submitting for your consideration the following additional legislative subjects, to wit: * * * 2. Fixing the terms of office of the various county officials in the several counties of the state."

This is all the Governor said to the Legislature in regard to the matter here in question. Did such language recommend anything? The writer thinks not. In the first place, if the language employed should be considered as a recommendation for legislation on the subject of the terms of county officials, it in no wise indicates the purpose or scope of such legislation. There is no reason apparent to the writer and no authorities cited as persuasive why this court should read anything into a message sent by the Governor to the Legislature convened in extraordinary session. The court has a right to presume that the Governor selected his language and intended nothing broader than the language imports. The Governor may have designedly so intended it. The language is,"Fixing the terms of office of thevarious county officials in the several counties of the state." A "county official" is an individual; "county office" is a public office created by law. The term of such offices is fixed by law and was so fixed at the time. Legislation as to county offices is one thing, but the terms of office of county officials is a vastly different thing. The term "official" has a fixed and definite meaning, and refers to some person actually in office, either by appointment or election. At the time this message was written, the various county offices in the state were filled or occupied by certain individuals called "officials," and the language of the message indicates that the Legislature might legislate as to the terms or the duration of time that the persons so holding the offices (officials) might continue in office. That the word "official" has a definite meaning is found in the Constitution of the state, even if it was not recognized by the common understanding of the word: for section 10 of article 23 (Williams' Oklahoma Constitution) provides:

"Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law, enacted prior to such election or appointment; nor shall the term of any public official be extended beyond the period for which he was elected or appointed."

In the active question, the extraordinary session of 1924 in no wise legislated as to the "terms of office of the various county officials in the several counties of the state," either by diminishing their terms or extending same. Had the Legislature undertaken to extend the terms for which such officials were elected and then in office, it would have been without legal force or effect, as violative of the above quoted section 10 of article 23 of the Constitution. At the time the message in question was written, the terms of office of the various county officials were already fixed by law. To be sure, the Legislature might abolish certain offices. It might have diminished the term of a public official already in office, but the Legislature did not legislate or undertake to legislate under the abovequoted section of the message of the Governor as to the term of office of the public officials of the various counties of the state, but passed the bill drawn in question in this suit known as "House Bill No. 65" (Session Laws 1923-24, page 142) and undertook thereby to legislate, not as to the public officials of the counties of the *Page 70 state, but to provide that the terms of the different offices should be extended from two years to four years, beginning at a certain date in the future, at the expiration of the two-year terms then running.

There is nothing in the message that even indicated that the Governor recommended or commended for consideration, favorable or otherwise, a bill which would extend the terms of county officers to be filled by persons elected in the future from a term of two years to a term of four years. The provision of the said message drawn in question here, when confined to the language used and considered in view of section 10 of article 23 of the Constitution, even if it should he considered a recommendation, carried with it nothing for the Legislature to legislate on, unless the Legislature saw fit to reduce the term of the county officials of the state, for it had no power under the Constitution to increase the term of office of the county officials, and the message does not purport to recommend that the terms of the various offices of the various counties of the state be increased, effective in the future, from two to four years.

The opinion of the majority of the court seems to hold that by reason of the last sentence of section 9, art. 6, the message was sufficient. The said sentence provides: "He (referring to the Governor) shall communicate from time to time (to the Legislature) such matters as he may elect or theLegislature may require." There is nothing in the message in question that indicates that the Legislature had required anything, and certainly the Legislature, even by a resolution duly passed, could not require the Governor to recommend certain legislation, for to do so would contravene the plain import of said section 7 of art. 6, which leaves the legislation to be recommended solely to the Governor. The message begins: "At the request of certain members of your honorable body." This does not indicate that the Legislature requested anything, for it acta either by resolution or by a formal enactment. On the contrary, the message indicates that certain members had been bringing pressure to bear upon the Governor to recommend consideration of legislation which would not otherwise have been in the mind of the Governor. This, however, would not have defeated its function, if indeed the message had been a recommendation. No doubt, to placate those members, he sent the message here in question. It bears not the appearance of a recommendation. An extraordinary occasion might arise which would demand an extra session of the Legislature, for a specific purpose. When convened, a sufficient number of members might want to legislate on other subjects, and refuse to meet the exigency for which it was convened, unless the Governor acquiesced in the demand that he recommend legislation not by him desired to be considered at the extra session. This procedure gives the Legislature the intimidating power over the executive branch of the state government, and by a process of duress virtually compels the executive to submit matters which should be taken up at a regular session, and for legislation on which there was no exigency, in order to secure the favorable consideration of that on which the public good demanded immediate action.

The legislation here in question was not such as brought about an "extraordinary occasion," which in contemplation of the above section of the Constitution must exist before the executive is warranted in calling an extraordinary session. The term of county offices had been two years for a long period of time. The regular biennial session had adjourned less than a year before this extra session. The next biennial session would have convened within less than a year from the date of this message. There was nothing that made this legislation necessary to be passed at an extraordinary session. There was nothing in the message of the Governor which commended for favorable consideration the legislation that was actually passed. It was without warrant, under the Constitution.

By analogy, the deductions above set out are sustained in the case of State v. Dishman (Mont.) 210 P. 604. Section 11 of article 7 of the Constitution of that state provided that at a special session of the Legislature there was no power to legislate on any subject not specified in the proclamation "or which may be recommended by the Governor." The extra session was called by the Governor, and thereafter a recommendation was made not contained in the proclamation. The Governor recommended "The enactment of further legislation for the suppression of illegal traffic in intoxicating liquors, and particularly recommended that such changes be made in existing laws as would harmonize our enforcement statute with the Volstead Act". Such legislation was passed. In this message, the Governor had recommended the substance of what he thought the Legislature should place in legal form. In concluding the opinion on the sufficiency of the recommendation to warrant the passage of the act drawn in question, the court said: *Page 71

"It was in response to the suggestions contained in that message that chapter 9 above was enacted, and no one can contend that the message did not comprehend the subject-matter of the statute." Sweeney v. City of Butte (Mont.) 208 P. 943.

In the instant case, there is nothing in the message of the Governor that comprehends that which the Legislature undertook to put into the form of law.

For this reason, under the Constitution of the state, the writer is of the opinion that the attempted enactment at the extraordinary session found no recommendation in the message of the Governor, and the Legislature was without power in the premises.

The mandamus should have been granted.