I am unable to concur in the conclusion announced by my associates. In my judgment Senate Bill No. 89, as enacted by the 19th Legislature, should be declared never to have become effective as a law by reason of its withdrawal by the Senate from the Governor before the expiration of time allowed the Chief Executive of the state to consider the act and weigh its merits as a law.
The act in question relates to the Game and Fish Commission of the State of Oklahoma. It was drafted to create a commission consisting of five members to be appointed by the Governor of the State with the consent of the State Senate. It contains provisions for recess appointment and prescribes the terms of the commissioners and fixes their compensation. It also contains a section repealing prior acts and another declaring an emergency.
The practical effect of the legislation, if valid, was to authorize the Governor to select the personnel of a new and larger Game and Fish Commission in lieu of the existing commission, the personnel (consisting of three members) of which had been selected during a prior administration by another Governor under the provision of section 1, ch. 45, S. L. 1925, as amended by chapter 27, S. L. 1929 (Title 29, O. S. 1941, § 1).
Under the act (Senate Bill No. 89, supra), the defendants herein were appointed by the Governor and confirmed by the Senate.
The plaintiffs are two members of the commission which existed prior to the enactment of Senate Bill No. 89. They assert that they, together with James W. McMahan, still constitute the commission. Their theory is that the questioned legislation never became effective as law because it was, by act of the State Senate, withdrawn from the Governor's hands before the expiration of the time allowed him under the State Constitution (art. 6, § 11) for consideration of legislation and before he had exercised his prerogative to veto the measure, approve it, or allow it to become a law without his signature.
The parties to this proceeding have entered into a stipulation as to the facts from which it appears that Senate Bill No. 89, having originated in the Senate during the 19th Legislature, was passed by the House of Representatives with certain "House" amendments and signed by the Speaker thereof on March 11, 1943. Thereafter the bill, as amended, was passed by the Senate and signed by its President on March 15, 1943.
On March 16, 1943, the bill was transmitted to the Governor. Thereafter, on March 22nd, the Senate adopted a motion requesting the Governor to return the bill to the Senate for further consideration. On the same day and pursuant to the request of the Senate, the Governor reurned he bill. The Governor *Page 99 had not approved or vetoed the bill. He relinquished possession thereof and returned the same to the Senate before the expiration of the time when the bill would become a law without his signature under art. 6, § 11, Oklahoma State Constitution, which provides:
"Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall enter the objections at large in the journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that House shall agree to pass the bill or joint resolution, 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 elected to that house, it shall become a law, notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the journal of each house respectively. If any bill or resolution shall not be returnedby the Governor within five days (Sundays excepted) after itshall have been presented to him, the same shall be a law inlike manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature unless approved by the Governor within fifteen days after such adjournment." (Emphasis ours.)
It is appropriate to notice at this point, in connection with the computation of time, the five days allowed by the Constitution, we exclude the first day (March 16th) and the following Sunday (March 21st). Thus the 22nd day of March, the date on which the bill was returned to the Senate at its request, fell on the fifth day. The Governor had until midnight of that day in which to determine what his action on the bill should be and could have vetoed it at any time prior to that time. McAlester v. Oklahoma Tax Commission, 174 Okla. 322,50 P.2d 647.
When the bill had been received from the Governor by the Senate, that body, on March 22nd, adopted a motion to reconsider its vote and thereafter adopted a motion refusing to concur in the "House" amendments and requesting the House of Representatives to grant a conference thereon.
No conference between the two branches of the Legislature was ever had upon the bill and the House of Representatives took no action in connection therewith.
On March 31, 1943, the bill was returned to the Governor, who, on April 14, 1943, delivered it to the Secretary of State. On March 31st the Governor appointed or attempted to appoint the defendants herein as members of the Game and Fish Commission. Notices of the appointments were transmitted to the Senate and on the same date approved by that body.
If Senate Bill No. 89 became and is the law of this state, the defendants constitute the Game and Fish Commission and should prevail in this action. If, however, the action of the Senate in requesting a return of the bill and the Governor's act in complying with that request operated to nullify the bill, the plaintiffs should prevail.
It may be observed at the outset of this discussion that our Constitution contains no provision either authorizing or forbidding the legislative branch of the government to recall legislative acts from the Governor after the same have passed the two Houses and have been transmitted to him for his consideration.
However, for years the practice of withdrawing legislation from the Governor's hands has prevailed in this jurisdiction. The rules of both branches of our State Legislature take cognizance of the practice. However, the rules contemplate that both Houses shall join in the request. *Page 100
Notwithstanding the existence of these rules, the practice has prevailed whereby each of the two branches act independently in making such recalls and each had acquiesced in the other's independent action in recalling legislation from the Governor's desk which had previously been passed by both.
It is stipulated by the parties that during the ten-year period from 1931 to 1941 the State Senate, upon its own motion, had recalled from the Governor's hands 20 bills without any concurring action on the part of the House, and that during the period of 1925 to 1941 the House of Representatives, without concurrence of the Senate, recalled from the Governor 41 bills.
In considering the legal aspects of this case it may be recognized at the outset that the generally prevailing rule in jurisdictions such as this, where there is no constitutional inhibition against recall, is that both Houses must act in the matter in order to make the recall effective. 59 C. J. 578; Southerland Statutory Construction (3d Ed.) p. 257 par. 1506; Statutory Construction, Crawford, p. 72. But, generally speaking, this rule is announced by decisions wherein no custom of recall by one House appeared to exist.
The only concurring action on the part of the House in connection with the bill now before us is its continued acquiescence and participation in the practice of recalling bills by action of a single branch of the Legislature. In my judgment this custom actively indulged in by both Houses is sufficient to constitute by implication a concurrence by the House in the action of the Senate in the recall of the measure now before us.
There is no specific constitutional inhibition against the practice. Judicial disapproval of it at this time might well bring into retrospective as well as prospective operation many of the laws now deemed to be dead by reason of similar recalls.
It is contemplated by our Constitution that legislation shall be considered by three agencies before it becomes the law of the state: the two branches of the Legislature and the Governor. The latter's approval, disapproval, or acquiescence therein by silence is in its essential aspect negative in character and subject to control by the two houses of the Legislature when sufficient majorities of both of the houses are opposed to his views. Notwithstanding these characteristics, the judgment which the Chief Executive is authorized to exercise partakes of a legislative character. By the Constitution (art. 6, § 11, supra), the Governor is granted a limited time in which to formulate his judgment in connection with legislation transmitted to his desk for consideration. The limit upon the time for exercising the judgment contemplated by the Constitution, considered in conjunction with the fact that the time for the necessary deliberation comes during the session of the Legislature when many matters are pressing for attention, argues strongly for the recognition of rules of law that will not permit legislation to become effective without according to the Chief Executive the full time contemplated for consideration of a measure.
In returning the bill now before us upon request of the Senate, the Governor of this state was acting in accord with precedent and practice. He had not acted on the bill and his time for action had not expired. The bill is now allowed to become a law on the fictitious theory that the Governor had the bill under consideration subsequent to its return to the Senate and the full deliberation contemplated by the Constitution has not been accorded the law.
Custom as a factor in determining the effectiveness of a recall has been judicially approved. In State v. Sessions,84 Kan. 856, 115 P. 641, the court discusses such a recall. It stated:
". . . In this state it has been the practice for several years at least for each house by its own resolution to recall bills from the Governor. Counsel have furnished a list of 17 which have been so recalled in the last six regular sessions of the Legislature, and we find *Page 101 that the practice existed before the period named. If the Constitution forbade this practice, the custom would not make it valid, but, in the absence of any express prohibition, the custom is significant as showing the construction of its own powers by a co-ordinate branch of the government.
"A law is not complete until it has been finally acted upon by the two houses and by the Governor. The action of the latter, it is true, may be only negative, as when he permits a bill to become a law by failing to return it in the prescribed period, still this implies consideration and authority. Until a bill has received the final consideration of the three lawmaking powers, viz., the House, the Senate, and the Governor, it is not a law (Pomeroy's Const. Law (3d Ed.) secs. 174, 176; People v. Bowen, 21 N.Y. 517; Kellogg v. State Treasurer, 44 Vt. 356, 8 Am. Rep. 383; The Power of the President, etc., 32 Am. Law Rev. 208), and, until such final consideration it must be subject to such changes as may be effected by authorized methods of procedure."
In the case of McKenzie v. Moore, 92 Ky. 216, 17 S.W. 483, 14 L.R.A. 251, it was alleged that a bill had been withdrawn from the Governor by a member of the House of Representatives who claimed he had obtained permission of the House. The sufficiency of the allegation was being considered. The court said:
". . . The object in presenting a bill to the executive is to enable him to consider its various features, that he may understandingly approve or reject it. He must have time to consider its provisions, and with the courtesy extended members of the Legislature by the executives of the state that has grown into a custom, in permitting them to withdraw bills before mature consideration by him that appear to be objectionable, it would be a singular ruling to adopt, and one productive of much evil, to permit a member, however honest in his motives, to withdraw a bill from the consideration of the Executive that the member himself has introduced, and, after the lapse of months, with the Legislature adjourned, to declare the bill a law because it was once in the Governor's hands. It is no such presentation as contemplated by the Constitution for the member or the custodian of the bill to deliver it to the Governor, then immediately withdraw it, and claim that it becomes a law because the Governor failed to return it within the ten days . . ."
In People v. Devlin, 33 N.Y. 269, 88 Am. Dec. 377, the recall of a bill was held to require the concurrence of both houses, but in the opinion (p. 381, 88 Am. Dec.) it was noted that there was no custom whereby a recall could be made by one house.
Custom has thus been recognized by the courts to sanction recall from the Governor of a bill previously passed by both branches of the Legislature. The courts of both Kansas and Kentucky have held that such recall can, if sanctioned by custom, be made by one house.
I agree with the views of those courts. Where the custom prevails and has been continuously practiced by the two houses of the Legislature, there is a concurrence by implication in the act of the other branch in making a recall.
I do not express an opinion on the question of whether the Governor must honor the recall. Should he refuse to return a bill on request, a problem would be presented which is not involved in this litigation.
The bill now before us was returned to the Governor at the close of the session. He kept it for 13 days and then sent it to the Secretary of State without signing the same. Having been previously effectively recalled and subsequently resubmitted to him less than five days before the close of the session, his failure to sign the same within the 15 days after adjournment prevented it from becoming a law as a reconsidered and resubmitted bill.
For the reasons stated, I respectfully dissent.
I am authorized to state that Mr. Justice OSBORN concurs in the views herein expressed. *Page 102