(dissenting). This is a petition for the writ of mandamus to compel said auditor to issue his warrant on the treasurer of the state for the sum of sixty dollars, which petitioners alleged he was required by law to issue on their, demand, upon a fund of $1200 appropriated to their use by the Legislature of 1903, for the purpose of assisting the secretary of war in making up a roster of the officers and enlisted men in the late Confederate army, from the state of Arkansas. The auditor refused to draw his warrant as demanded, claiming that the bill making said appropriation never in fact became a law, the same having been vetoed by the governor.
The bill, it' appears, was regularly passed through both houses of the-General Assembly on the 29th day of April, 1903, the day before the final adjournment of that body, on the 30th day of April, 1903. It appears from the record in this case that about one hundred other bills also passed both houses, none of which had been presented to the governor for his approval or disapproval before said adjournment. The General Assembly adjourned leaving its clerical force and the joint committee on the enrollment of bills to finish up its unfinished work. These officers set about the work of having this great number of bills duly enrolled and put in shape to be presented to the governor. It was soon found, however, that the enrolling clerk could not do the work in time, within the 20 days allowe.d by the Constitution for the governor to file and publish by proclamation Ms objections to any of them; and then began arrangements to expedite the work, so as to have it done in time. Much evidence dehors the record was taken on the question of whether or not the bill in question, with the others, had ever been presented to the governor for his examination and action thereon; the petitioners contending and attempting to show that such presentation was in fact made of all of said bills on the 15th of May, 1903, while the respondent contended that the bills were never in fact presented for that purpose at any time.
Before proceeding to discuss the evidence, however, I have this to say as to the law of the case, from a constitutional standpoint: In my opinion (if it were a new question), no bill that has not been presented to the governor for his 'examination before the final adjournment of the General Assembly can ever become a law under the Constitution of this State. The constitutional provision on the subject is as follows, to-wit:
“Every bill which shall have passed both houses of the General Assembly shall be presented to the governor; if he approve it, he shall sign it, but if he shall not approve it, he shall return it, with his objections, to the house in which it originated, which house shall enter the objections at large upon their journal, and proceed to reconsider it. If, after such reconsideration, a majority of the whole number elected to that house shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which likewise it shall be reconsidered; and if approved by a majority of the whole number elected to that house, it shall be a law; but in such cases the votes of both house shall be determined by fyeas and nays/ and the names of the members for Or against the bill shall be entered on the journals. If any bill shall not be returned by the governor within five days, Sundays ■ excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the secretary of state and give notice thereof by public proclamation within twenty days after such adjournment.” See. 15, art. 6, Constitution of 1874.
It will be readily seen that the “presentation to the governor” contemplated in the language of the latter clause of this section is made before adjournment, and no provision is made for such “presentation” after the General Assembly has adjourned. The twenty days is given to the governor that he may consider the nature and character of the bill, and file the same with his objections to it, not his objections to the manner or the time of its presentation, for this formality must have been complied with before the adjournment of the General Assembly. If the governor have no' objection to the bill itself, intrinsically, the same having been in due time presented to him, he need not approve it, for it becomes a law ipso facto at the end of the time allowed him to return it to the proper officer. The presentation to the governor is one of the essential things to be done by the joint enrolling committee, and the joint rules of the two houses require that the enrolled bills shall be signed by the speaker of the House and president of the Senate before it is presented to the governor for his examination; but the governor may doubtless waive a strict compliance with this part of the joint rules, if the exigencies of the occasion require it, so that the bill is properly signed by the officers named before it shall be treated as a law. But, unless the bill is presented before adjournment, the governor has nothing and can have nothing before him to examine, for the unpresented bills are then dead, and can not in my opinion be brought to life again by any act of the governor or any one having to do with it.
No proof of the correctness of this proposition is needed, other than the language itself of the section of the constitution quoted. The argument is rendered conclusive on the subject by the corresponding provision of each of the several constitutions of this State. The Constitution of 1836 reads thus: “Every bill which shall have passed both houses shall be presented to the governor. If he approve it, he shall sign it, but if he shall not approve it, he shall return it, with his objections, to the house in which it shall have originated, who shall enter his objections at large upon their journals, and proceed to reconsider it. If, after such reconsideration, a majority of the whole number elected to that house shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which, likewise, it shall be reconsidered, and if approved by a majority of the whole number elected to that house, it shall be a law; but in such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for or against the bill shall be entered on the journals of each house respectively. If any bill shall not be returned by the governor within three days, Sundays excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return; in such case it shall not be a law.” If the General Assembly, by its adjournment, prevented the return of the bill by the governor to the house in which it originated, it was dead, and did not become a law under any circumstances.
The identical provision is in the Constitution of 1861 and 1864. The Constitution of 1868, with some minor differences in other respects, was identically the same, with the addition, that “the governor may approve, sign and file in the office of the secretary of state, within three days after the adjournment of the General Assembly, any act passed during the last three days of' the session, and the same shall become a law.” Necessarily, no veto could have any effect after the adjournment of the General Assembly, for all bills passed were dead, unless such as were approved within three days after the adjournment. But no provision was made for the presentation of bills to the governor, except for such presentation as should be made when the General Assembly was in session, and the governor’s veto might be overridden by the General Assembly, which, of course, could not be done except while in session.
Under the Constitution of 1868, the governor might approve a bill within three days after the adjournment, and it would become a law. Under the Constitution of 1874, his approval after adjournment amounts to nothing, for without his disapproval and proclamation the bill becomes a law of itself. But the presentation of the bill for his examination must be made before the adjournment, and if five days before, and he does not return it within the five days, the bill becomes a law, unless the adjournment curtail the five days allowed him after presentation, in which case, he has twenty days to further consider the matter, formulate his objections, and make and publish his proclamation.
Substantially the same provision is contained in the Federal Constitution, and yet it is well known and understood that no bill can become a law without presentation to the president before the adjournment of Congress, and his action also had before such adjournment. The reason of such a rule is so obvious as to make its application almost necessarily universal. It would tend, and was intended, to prevent such an accumulation of uncompleted bills as is exhibited in this unfortunate controversy. It would, in the second place, give the General Assembly the opportunity, as it has the right and duty, to override the governor’s veto action in any given case — an opportunity the General Assembly has no power to deprive itself of, further than is expressly waived in the Constitution in behalf of the public.
If this was a new question, I would unhesitatingly hold that no bill presented to the governor after the adjournment of the General Assembly could ever, by the action of any one, become a law; but the court’s attention was in the outset called to the decision in. the ease of Dow v. Beidelman, 49 Ark. 325. It is held expressly in the opinion in that case “that the Constitution (art. 6, § 15) does not require all bills to be presented to the governor before the adjournment of the Assembly, and the first presentation of the bill being ineffectual, because it was not the same that had been passed, the legislative officers had the power after the adjournment to submit to the governor for his approval a correct enrollment of the bill, as it was passed.” The statement itself of this ruling but indicates something peculiar in the state of facts upon which the rulings were made, and the trained professional man, being thus put on his guard, will not be ready to adopt the decision as a precedent in ordinary eases of bills failing to be presented to the governor, after adjournment of the General Assembly. Quoting further from the first syllabus in the case, the facts appear therefrom as follows: “The act was regularly passed by both houses of the General Assembly; but in its enrollment two provisions which had been reported by the conference committee and incorporated in the act by way of amendment were omitted. In this form it was sent to the governor, and was by him approved on March 30. The next day the General Assembly adjourned. After the adjournment the omission was discovered. A correct enrollment was then made, and the bill, signed by the president of the Senate and the speaker of the House, was again laid before the governor, who approved it on April 4th'.” This of course was a misprision of the enrolling committee, and the question with the officials, who were confronted with such a plain mistake or oversight, was, was it not better to correct the obvious error thus occurring than to discard a solemn act of the General Assembly by a refusal to make the correction? The governor at the head of the executive department, and the president of the Senate and speaker of the House representing the legislative department, all of whom possess a sound discretion in a doubtful matter to determine their own course of action therein, probably did the right thing under the circumstances of that case, and I have no criticism of that decision so far, but I can not think this state of facts authorized this broad language of the decision: “Nothing in this language [the constitutional provision] implies that all bills must be transmitted to the governor before the adjournment of the Assembly. He is prevented by the adjournment from returning the bill, whether the bill is in his hands before it adjourns or reaches his hands afterwards.” The context, in my opinion, shows the implication to be a necessary one, and that the court’s enunciation was erroneous, and consequently entailed a Pandora’s box of evils upon the state, of which we now have ocular demonstration.
But I am reminded that, since the rendition of that decision in 1887, every Legislature has taken this court at its word as therein employed, and so has every governor down to this good day, and adopted a custom or contracted a habit of passing bills and leaving them to be presented by officers detailed for that purpose to the governor for his action after the adjournment, and treating such bills in a way as will give them life as laws; that, if the validity of that custom is now to be broken in upon, or that habit declared void, many bills passed within the last 16 years would be called in question, presumably all expressing and exhibiting the will of the people, and that therefore the greatest confusion and injustice would prevail. There is something in that course of reasoning, and I would be the first to bow to its mandatory character, where only my own fallible opinion is in the other end of the scale. That being the status of the case, the only remaining question is one of fact— that is, the question is mainly one of fact.
I have said that, soon after the adjournment of the General Assembly, it began to be seen that, unless some more expeditious method was adopted to transact the business left over, the legislative officers could not complete the work before them. In this dilemma, the governor and his private secretary were called upon 'to assist in devising the necessary plans to transact the business before the time limit of the governor’s action should expire — the 20th of May, 1903.
It is impossible and unnecessary for me to recite in detail all the evidence adduced pro and con, especially as I am inclined to look with disfavor upon evidence dehors the record in such a matter. I am quite ready to say that in my opinion that the private secretary of the governor is the general and official agent of the governor in transacting all the business for him as such, at least in all he did in the premises in this instance, and I am of the opinion from the testimony also that the governor was quite willing to aid the legislative officers in any way he could lawfully in expediting the business, so that the regularly passed and unobjectionable acts of the Legislature should become laws, and I think that the evidence shows, notwithstanding some seemingly conflicting statements of witnesses here and there, conflicts more apparent than real, that the suggestion of the enrolling clerk was acted upon to the effect that the governor could run over the list of the bills, select those he wished to veto, let the others become laws by his silence, have the bills desired to be vetoed readily enrolled for the signatures of the speaker of the- House and president of the Senate as they should come in from their homes. I think this was the tacit understanding, if not the express understanding, when the bills were received and reecipted for on the 15th of May by the governor’s private secretary. At all events, apparently, that plan was acted upon to some extent, not in the strictest manner, perhaps, but in a way that ought to give validity to the presentation then and there made, and that, there being no mandatory direction in the Constitution as to how the unfinished business should be transacted after the adjournment, each official involved had a sound discretion to act as he thought best to reach the end in view in conjunction with the others, and to waive all privileges and rights really personal to himself and affecting his own convenience. The circuit court found the proper presentation to have been made. I see nothing to interfere with his findings. The bill in question (I have nothing to say as to the others) seems to have been inadvertently vetoed, or vetoed for want of form,, there being no intrinsic objection to it. Under the circumstances, I think every doubt should be solved in its favor. I am also of opinion that Sundays are to be included in the twenty days, and consequently that the vetoes are ineffective.