Clark v. Boyce

CUNNINGHAM, C. J.

(Concurring). — I find so many good reasons supporting the law that I am constrained to state those that appeal to me with the greatest force. I do not wish to be understood as disagreeing with the reasons and arguments presented by the other members of the .court. I am particularly agreeable to the proposition of sustaining the construction placed upon the constitutional provisions in question by the legislative and executive departments. I am of the opinion that this is a sufficient reason in any doubtful case to justify affirming such official construction.

I am convinced, for other reasons, that such construction by the legislative and executive departments is sound.

I now proceed to state my reasons for such opinion.

The bill in this case passed both houses of the legislature by the votes of two-thirds of the members elected to each house; a separate section stated why it was necessary for the immediate operation of the law; after its final passage by the legislature, it was, on the thirteenth day of March, 1919, presented to the Governor for his approval or disapproval, and the legislature on that date closed the session. The Governor, after consideration of the measure ten days (Sun*563days excepted); filed the same in the office of the secretary of state without objections.

The appellant claims that the bill was approved by the Governor whenever he filed it in the office of the Secretary of State without objections ten days after the close of the legislative session at which it passed; the appellee contends that the expression, “also approved by the Governor,” means an affirmative approval by that officer, and that, as the bill is an emergency measure when presented to the Governor, his failure to approve it by signing it is fatal to the law. But it is urged by appellant that the following portion of section 7, article 5, Constitution, applies, to wit:

“If any bill be not returned within five days after it shall have been presented to the Governor (Sunday excepted) such bill shall become a law in like manner as if he had signed it, unless the legislature by its final adjournment prevents its return, in which case it shall be filed with his objections in the office of the Secretary of State within ten days after such adjournment (Sundays excepted) or become a law as provided in this Constitution. After the final action by the Governor, or following the adoption of a bill notwithstanding his objections, it shall be filed with the Secretary of State.”

The appellee answers this contention and insists that all of section 7 of article 5 is expressly excluded from the enactment of emergency measures by the words of the section as follows: The last sentence of the first paragraph of section 7 reads: “This section shall not apply to emergency measures as referred to in section 1 of article on the legislative department.” The contention of the appellee would be forcible if the sentence relied upon closed with the word “measures”; that is to say, if the sentence read as follows: “This section shall not apply to emergency measures.” These words, however, are qualified by those that follow, to wit, “as referred to in section 1, Legislative Department. ” As a consequence, section 7 of article 5 does apply to emergency measures in all particulars other than the particulars referred to in section 1, Legislative Department, with respect to passing emergency measures. The steps required by section 1, subdivision 3, part 1, article 4 (Legislative Department), to complete the passage of an emergency measure, are made exceptions from the requirements necessary to regularly pass an ordinary law. *564The regulations set forth in section 7, article 5, are to be observed in the passage of an ordinary bill, so the bill passed as an emergency measure is an exception and requires other and different procedure from that required for the passage of the ordinary bill.

These other and different regulations and proceedings so required to be observed in passing emergency measures are the things referred to in section 1, article 4, to which the words “as referred to” relate in the connection in which they are used in said sentence. \

All regulations mentioned in section 7, article 5, other than those which conflict with the regulations of like nature specified in section 1, part 1, article 4, must be observed by the legislative départment in the passage of all bills. The sentence must be understood as if it were worded as follows:

“This section shall not apply to (the passage of) emergency measures (in the particulars) specified in section 1 of the article (4) on the legislative department.”

We must read subdivision 3, of section 1, part 1, article 4, as a proviso to section 7 of article 5, inserted in lieu of the sentence referring thereto. So arranged, section 7, article 5; reads as follows:

“Every bill passed by the Legislature, before it becomes a law, shall be presented to the Governor. If he approve, he shall sign it, and it shall become a law as provided in this Constitution. But if he disapprove, he shall return it, with his objections, to the house in which it originated, which shall enter the objections at large on the journal. ' If after reconsideration it again passes both houses by an aye and nay vote on roll call of two-thirds of the members elected to each house, it shall become a law as provided in this Constitution, notwithstanding the Governor’s objections.
“Provided, that no such emergency measure shall be considered passed by the Legislature unless it shall state in a separate section why it is necessary that it shall become immediately operative, and shall be approved by the affirmative votes of two-thirds of the members elected to each house of the Legislature, taken by roll-call of ayes and nays, and also approved by the Governor; and should such measure be vetoed by the Governor, it shall not become a law unless it shall be approved by the votes of three-fourths of the members elected *565to each house of the Legislature, taken by roll-call of ayes and nays.
' “If any bill be not returned within five days after it shall have been presented to the Governor (Sunday excepted) such bill shall become a law in like manner as if he had signed it, unless the Legislature by its final adjournment prevents its return, in which case it shall be filed with his objections in the office of the secretary of state within ten days' after such adjournment (Sundays excepted) or become a law as provided in this Constitution. After the final action by the Governor, or following the adoption of a bill notwithstanding his objections, it shall be filed with the secretary of state.
“If any bill presented to the Governor contains several items of appropriations of money, he may object to one or ■more of such items while affirming other portions of the bill. In such ease, he shall append to the bill at the time of signing it, a statement of the item or items which he declines to approve, together with his reasons therefor, and such item or items shall not take effect unless passed over the Governor’s objections as in this section provided.
“The veto power of the Governor shall not extend to any bill passed by the Legislature and referred to the people for adoption or rejection.”

When we thus quote the like provisions of section 1, part 1, article 4, referred to in section 7, article 5, we at once see the force of the expression “as referred to in section 1, Legislative Department.” Section 7, article 5, does not apply to emergency measures except as to the particulars not prescribed by section 1, Legislative Department. The like things prescribed by section 1, Legislative Department, for the passage of emergency measures, are not supplanted by section 7, article 5, and in such respect section 7, article 5, does not apply to the passage of such measures in such particulars.

If section 7, article 5, does not apply to the enactment of emergency measures in any respect, as contended by the appellee, then certainly the Governor is riot required to sign the bill; “if he approve it he shall sign it.” Section 7, article 5, alone, expressly gives effect to the failure to return the bill without his signature. In such case it shall become a law “in like manner as if he had signed it.” If the bill *566is an emergency measure and section 7, article 5, does not apply in any manner, then the Governor’s failure to sign as evidence of his approval is immaterial. His holding the bill without action thereon is immaterial; his positive disapproval with specific objections filed is the only act of the Governor in the enactment of emergency legislation which is required to be made of record. In the absence of the record of the Governor’s disapproval accompanied by a statement of his objections, an emergency law found in the office of the secretary of state after the close of the legislative session, filed there by the Governor, would be deemed a law passed with due observance of the regulations of enactment.

While such construction may be authorized upon the theory of a strict construction, yet I think it is not the fair meaning to be given to the said provisions. I am of the opinion that the words “as referred to in section 1, Legislative Department,” mean that in so far as section 1, Legislative Department, has prescribed the regulations necessary to pass emergency measures, such regulations shall control, whenever ánd wherever they come in conflict with section 7, article 5.

The language, “this section shall not apply to emergency measures as referred to in section, 1, Legislative Department,” so clearly means that the two sections shall be construed together and made to operate without conflict, that it is only necessary to determine the extent of section 1, article 4, by reading it into the section referring to it, and giving effect .to section 7, article 5, over and above that which is carried in section 1, article 4.

We held, in Allen v. State, 14 Ariz. 458, 44 L. R. A. (N. S.) 468, 130 Pac. 1114, in effect, that courts have no power to go behind the final legislative record and declare an enrolled bill invalid as a law for the failure of the legislature to comply with some Constitutional provision regulating its passage. Such legislative record, if regular on its face, speaks a truth that the courts must accept and act upon. See, also, Graves v. Alsap, 1 Ariz. 274, 25 Pac. 836, and Harwood v. Wentworth, 4 Ariz. 378, 42 Pac. 1025, affirmed 162 U. S. 547, 4 L. Ed. 1069, 16 Sup. Ct. Rep. 890.

,We may treat as settled law of this state, from said cases, that the enrolled acts of the legislative department found on file in the office of the Secretary of State, bearing evidence that such enrollments .previous to the time when filed had *567received final action thereon by the legislature, and thereupon were presented to the Governor, and by the Governor finally acted upon by filing with the Secretary of State without objections, that enrolled bills bearing such evidence of final action constitute the record of the law — the only competent evidence of the record of the laws passed by the legislature, to which the courts may give effect. Such record imparts absolute verity and cannot be impeached by evidence of less dignity. The question of inquiry in such case is: Does a record of law exist in the office of the Secretary of State? The Secretary of State has printed the enrolled bill as chapter No. 160 and certified to it. See certificate of Session Laws 1919. Said record bears no evidence of the Governor’s veto or disapproval with objections. It bears on its face, however, the certificate of the Secretary of State in the form prescribed by paragraph 44, Revised Statutes of Arizona, 1913, to the effect that the enrolled bill was held by the Governor ten days (Sundays excepted) after the legislature closed the session at which it was passed, and filed the same in the secretary’s office as a law on the twenty-sixth day of March, 1919. We take notice that the legislative session finally adjourned on the thirteenth day of March, 1919. The bill was neither vetoed nor disapproved with the stated objections.

It is clearly a valid existing law, and as such became operative on the twenty-sixth day of March, 1919, the time when it was filed by the Governor without objection. When the Governor filed the bill in the office of the Secretary of State at the expiration of a period of ten days’ consideration (Sundays excepted), and he returned no objections to it, such action of the Governor was the performance by that officer of his final duty with regard to the enactment of the bill into a law. The clear duty of the Governor in such eases is the approval or disapproval of every bill presented to him by the legislative assembly. He can take no middle course and refuse -to act either way. This court must presume that every sworn public officer has done his duty until the contrary appears, and this presumption applies to the Governor.

Indulging this presumption, we are compelled to the conclusion that, when the Governor has filed the bill in the proper office at the expiration of his time for consideration, *568that he filed it with his entire approval, .unless the contrary appears. The contrary does not appear on the face of the record of the law.

The court erred in refusing an order compelling the auditor to perform a plain legal duty and issue his warrant for the salary claimed. •