(dissenting.) I think the wrong conclusion has been reached by the court in this case, and I dissent from the views of the majority of the judges as expressed in the opinion written by the Chief Justice. It should be said in the outset that neither court nor counsel have deemed material the fact that another individual, acting as Governor, had previously signed and approved the bill when the veto power was attempted to be exercised, instead of the two acts having been done by the same individual. So far as that is concerned, the law with reference to the powers of the Acting Governor to veto the bill in question is the same, whether he had previously signed it himself, or whether it -had been signed by his predecessor. If Acting Governor Moore would have had the power to veto the bill while it remained in the executive office, and within his physical control, notwithstanding his having previously signed it with intention to approve it, then his successor, Acting Governor Pindall, had the power to do so. .The separate personal identity of the two individuals who successively discharged the duties of Governor are to be entirely disregarded in considering the question involved.
The Constitution of the State provides that “the Secretary of State shall keep a full and accurate record of all the official acts and proceedings of the Gpvernor, and, when required, lay -the same, with all papers, minutes and vouchers pertaining thereto, before either branch o.f the General Assembly.” Const. 1874, art. 6, § 21.
The statutes of the State provide that the Secretary of State shall “proceed to copy the acts, joint resolutions and memorials of the General Assembly as soon as they are approved by the Governor, and shall hand over copies thereof to the public printer,” and that he shall certify the laws thus printed to be correct copies of the originals on file in his office. Kirby’s Digest, § § 3352, 3353.
That officer is thus made the custodian, and the only one, of the records pertaining to the Governor’s office, and his office is the only place where record evidence of the official acts of the Governor may be found. It is therefore manifest that the framers of the Constitution and the law makers intended to provide a place where record evidence of the official acts of the Governor and the existence of the statute laws of the State shall repose; and to provide an official with power to make certificates of the existence of such records. This being true, is such record the sole evidence of such act, or can that record be contradicted or impeached by oral evidence? That is what I conceive to be the controlling question in this case.
It is not important to discuss whose duty it is, whether that of the Governor or Secretary of State, to convey to the office of the latter the written documents evidencing the official acts of the- former; but when a record made by those officers in the manner and within the time prescribed by law is found in the office of the Secretary of State, it is conclusive and unimpeachable record evidence of the authenticity of the official acts therein recorded. It can not and should not be overturned 'by oral evidence.
The Constitution provides that a bill must be presented to the Governor, and that, “if he approve it he shall sign it,” but if he shall not approve it he shall return it with his objection. His signature, then, is the sole evidence of his approval or disapproval, as that can not rest' in parol.
This view is sustained by three courts of great learning and ability, and is, I think, unquestionably correct upon principle. The Illinois Supreme Court has laid down this doctrine in two cases, in both of which well-considered opinions were delivered.
In People v. Hatch, 19 Ill. 283, where the bill had been signed and marked approved by the Governor .and delivered to the Secretary of State, and then withdrawn and vetoed, the court said:. “We choose to place our decision in this case upon the broad principle of power in the Executive to reconsider his approval of this bill, and to withdraw it, at any time while the bill remained before him, even though it had been signed by him ever so deliberately, and entirely -independent of the fact that, in this instance, the Governor never did, in fact, approve the bill, and that his name was inadvertently signed to it, supposing that it was another bill. We prefer to vindicate a general principle, which is so essential to that careful deliberation which should ever characterize the making and approval of our laws, and which is entirely conclusive of the question before us, rather than rely upon the peculiar circumstances of this particular case.”
In People v. McCullough, 210 Ill. 488, where the facts were almost identical with the facts in the case at bar, the Governor, having signed and approved the bill, afterwards erased his signature and indorsement, and then vetoed it, the court, upon the question of admissibility of oral evidence to show the approval of the bill and delivery of it to the Secretary of State, said: “The indorsements on the bill show that it was not approved, and do not show that it was approved. If only record evidence can be introduced to • show that a bill was not properly passed by the two houses of the Legislature, certainly only record evidence can be introduced to show that the Governor filed the bill in the office of the Secretary of State with his objections in case the bill was vetoed by him. The Secretary of State is required by the statute to make and keep proper indices to the executive records and all public acts, resolutions, papers and documents in his office. In the case at bar records were introduced from the index department of the Secretary of State’s office, and these records showed, by entries therein made on May 13th, 1901, that on that day the Partello 'bill was received by the Secretary of State accompanied by the Governor’s veto thereto. It thus appears that the record evidence properly kept in accordance with the requirements of the statute in the Secretary’s office shows that the bill in question was vetoed, and was filed within the ten days, specified in the Constitution, with the Governor’s objection. No competent evidence having been introduced to contradict or overcome the showing thus made by the records, the court below was justified in holding that this Partello bill did not become a law, and in refusing to issue the writ of mandamus. The showing made by the record evidence was not overcome by the incompetent oral testimony.”
In Weeks v. Smith, 81 Me. 538, where the Governor had first signed and approved the bill and caused it to be carried to the office of the Secretary of-State, and then recalled and vetoed it, the court rejected the oral testimony, and held that the record in the office of the Secretary was conclusive. The court -said: “The relator seeks to overturn the solemn record that stands against him by the testimony of the Governor’s private secretary and other witnesses (the Governor being dead) whose evidence is supposed to show that the Governor approved the act by signing it and leaving it upon his table in the executive chamber to be taken to the Secretary’s office, in the usual course of business, where it was taken during the Governor’s absence at dinner, but who upon his return immediately called for the act and on the same day returned it to the Senate with his veto. Had the act been deliberately deposited in the Secretary’s office by the Governor, it is not to be presumed that the Secretary of State would have surrendered it and allowed it to have been taken from his custody. On the other hand, if by mistake it was left in his office without authority from the Governor, it could hardly be considered as the deposit of a document in his custody, and therefore did not become the record of a statute that, if lost or destroyed, could be declared by the court from its judicial knowledge as an existing law, under the doctrine of the case of The Prince, 8 Coke, 28, * * * The act in question has been neither lost nor destroyed, but is now a solemn record in the Secretary’s office, showing that it never became a statute; and the parol testimony relied upon to establish a lost or destroyed record is incompetent, inasmuch as in seeking to set up a lost record it flatly contradicts an existing one.”
The clear result of these decisions is that where the Governor, within the time given him by the Constitution for the approval or .disapproval of a bill, makes a record in the office of the Secretary of State of his final action, that record is conclusive and can.not be impeached by oral evidence showing that he had previously taken other, action in disposing of the bill. The final deposit of the bill in that office, bearing the indorsement the signature of the Governor, constitutes such a record.
The filing of an approved bill in the office of the Secretary of State is manifestly the time when it becomes a law, unless, the Governor fails to return it within the time given him for consideration, in which case it becomes a law at the expiration of that time. If that be not so, how is the Secretary of State to perform his duty of preserving and certifying the existence-of the statutes? There is no other means for him to ascertain-what the act of the Governor is in approving or disapproving a bill than as manifested by the filing of the bill in the Secretary’s office with his approval or disapproval or by failing to return it within the time required. Surely, he is not presumed to know and take cognizance of the hidden acts and intentions of the Governor, nor is he bound to inquire, when the Governor files an approved or disapproved bill in his office, whether or not the Executive had previously taken inconsistent action thereon.
The law requires the Secretary of State to “keep a full and accurate record of all the official acts and proceedings of the Governor,” and he can only keep a record of those acts and proceedings which the Governor makes known to him in the manner provided by law. If the Governor makes known to him in the constitutional manner the fact of his having vetoed a bill, he is not presumed to know, and is not bound to take notice of the fact, that the Governor had previously taken other action on the bill and then changed his mind, and reversed his decision before the 'bill left his possession.
The case of Field v. Clark, 143 U. S. 649, involved an attack upon the tariff act of Congress of 1890, and an attack was made to show that the enrolled act, as attested by the Vice President and Speaker of the House of Representatives, as approved by the President and deposited with the Secretary of State, omitted an important -section contained in the act when it was enacted by the two houses of Congress, and was not in fact the act which was passed. The -court held that the enrolled attested act wa-s conclusive evidence of the enactment, and Mr. Justice Harlan, in delivering the opinion of the court, said: “The signing by the Speaker of the House of Representatives and by the President of the Senate, in open session, of an enrolled bill is an official attestation by the two houses of such bill as -one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the Government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled act in the custody of the Secretary of State, and having the official attestation of the- Speaker of the House of Representatives, -of the President of the Senate, and of the President of the United States, .carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress.' The respect due the co-equal and independent departments requires the judicial department to act upon the assurance, and to accept, as having-passed Congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act -so authenticated is in conformity with the Constitution.”
It is true the opinion just quoted from is based upon the doctrine that journal entries of the legislative branch of the government can not be used to impeach the.enrolled act, and this court has held to the contrary rule; but it establishes and upholds the principle, whether the journal of the Legislature may be looked to as controlling or not, that a solemn record of the co-ordinate branch of the government can not be impeached by evidence of less dignity. It fully establishes, I think, the principle that a bill found in the office of the Secretary of State, attested by the proper indorsement of the Governor, carries on its face a solemn assurance of its approval or disapproval by that officer, which is complete and unimpeachable.
The Illinois court holds, as we do, that journal entries of the’ Legislature control the enrolled act, yet they hold, in the cases hereinbefore cited, that oral testimony can not be accepted to impeach the record of the Secretary’s office of the action of the Governor upon the bill.
But it is said in the majority opinion -that the Acting Governor has, in his veto message and proclamation, brought upon the record evidence of his lack -of power to veto the bill at that time, and has thus made a record of equal dignity with that of his indorsement of disapproval on the' bill. In other words, that his veto message, reciting the fact that the bill had previously'been signed by the former Acting Governor, bore its death wound on its face. I do not think so. He is not required to state in his veto message the facts concerning the status of the bill, and he did not, by émbodying references thereto in the message, make them evidence of the facts therein recited. He is not required by law to state whether any executive action has been previously taken concerning the bill, nor, in this instance, that the bill had previously been signed by his predecessor, and his recital of that fact did not, in my opinion, make record evidence of its existence. The Constitution merely provides that if, after the Legislature adjourns, the Governor disapprove • a bill, he shall “file the same, with his objections, in the office of the Secretary of State, and give notice thereof by a public proclamation.” Const, art. 6, § 15.
The fact that his predecessor had previously signed the bill was not an “objection” to the bill, nor reason for the veto,- therefore, a recital of such fact formed no proper part of the veto message.
However, if we accept, as proper evidence, the recitals of the veto message, I do not think it is sufficient to overturn the record of his disapproval or to show that he had no power to exercise the veto. The message only recites, in that particular, that the Acting Governor found the bill still in the executive office when he assumed the duties of the office, though it had already been signed by his predecessor. The statement is a declaration by the Acting'Governor that the bill was still in the possession of the executive and still within executive control. It would be precisely the same if he had vetoed the bill and said in his message, “I signed this bill yesterday with the intention of approving it, büt retained it in my possession, and have concluded to disapprove and veto it, which I now do.” Would it be contended for a moment that such a declaration as that in a veto message would “bear its death wound on its face,” and nullify the veto? Surely not.
There must of necessity be, and there is, some point of time when the power of the executive over a bill ends and when it becomes a law. The Constitution has plainly fixed the limit of time during which the executive may retain a bill in his control, and has prescribed what shall become of it when his control over it ceases. Now, as long as he retains physical control over the bill by keeping it in his possession during the period given him for consideration, he reserves his final decision, and if, after having signed the bill, 'he still retains it in his possession, his power over it is complete. I think it is erroneous to say, as the majority have said in their opinion, that when the Governor signs a bill with the intention of approving it, the executive power has been exercised, and is exhausted,, even though the executive still keeps the bill in his possession, and retains dominion over it. Such a rule leads to hopeless confusion and uncertainty in the law, for that which might appear from the record to be the final action of the executive in approving or disapproving a bill might be set at naught by proof, of prior inconsistent action on the same measure. This precise question was decided by the Illinois court in the following language: “Under the Constitution the Governor has ten days within which to consider a bill that has been presented’ to him, and to determine whether or not he will approve and sign it or veto it. If he should sign the bill and mark it approved, he would have a right to reconsider his act, and erase his approval, while the bill still remained under his control, and before' the expiration of the time allowed to him by the Constitution for its consideration.” People v. McCullough, supra.
It seems to me to be the only safe guide, in determining' whether or not a bill has or has not received the approval of the executive, to accept as conclusive the final action of the Governor as reflected by the record thereof made in the office-of the Secretary of State in the manner and within the time prescribed by law. In that manner and place alone can it appear with certainty so that all may see and know, and where the Secretary of State may, in accordance with the duty imposed upon him by law, certify its existence.
The Supreme Court of Maine, in the case hereinbeforecited, has, I think, declared the correct rule as follows: “The signature of the Governor to an act of the Legislature is conclusive evidence of executive approval against everyone but himself. He alone should be permitted to dispute it, and only then when he holds control of the act, and before he shall have-deposited it in the archives of the State, for then it becomes' operative as expressing the legislative will in the form of a: statute. It has then passed under the control of the constitutional officer whose duty it is to 'carefully keep and preserve it.’ ”
The views of ¡the majority in this case fail, I think, to find support in sound reason, and certainly find no support in the authorities. The case of Marbury v. Madison does not bear at all upon the question involved in this case. The act of the President in appointing Marbury had become final by signing the commission and filing- it with the Secretary of State. It had passed entirely beyond his control, and nothing remained for him to do. To treat that case as an authority supporting the views of the majority is to put it in direct conflict with numerous later decisions of the same court, especially Field v. Clark, supra. I prefer to follow the lead of the Illinois and Maine courts in the cases herein cited, which are absolutely decisive of the question before us, and which I think establish a safe and sound rule, ' consistent with that respect which is due from one of the co-ordinate branches of the government to another. Any other rule leads to confusion and uncertainty.
Mr. Justice Riddicic, concurs in this opinion.