The object of this application, is to test the validity of an act passed at the last session of the General Assembly, entitled “ An Act to create senatorial and representative districts, and apportion the representation in the General Assembly of this State.” The facts, as admitted upon the record, are these: The act in question, having, in a regular and constitutional mode, passed both branches of the General Assembly, and having been properly signed by the speakers of both houses, was, on the 18th of February, 1857, regularly laid before the Governor for his approval. That on the same day the Governor, having many bills before him for examination and approval, through inadvertence and mistake, added to the bill the words of approval, with his signature. That at the time this was done, he supposed it was some other bill, and that he never did in fact approve of this bill, but always intended to return it with his objections, to the House of Representatives, where it originated. That his private secretary, finding the bill with others on the Governor’s table, with his note of approval and signature attached thereto, delivered a message to the House of Representatives, as coming from the Governor, announcing that ho had approved of said bill. That this was done without the special direction, sanction or knowledge of the Governor, although according to the usual routine of business. That so soon as the Governor was informed that it had been announced to the house, that he had approved of the bill, and within thirty minutes of the announcement of approval by the secretary, he sent a message to the speaker, which was read to the house, informing the members that he had not approved said bill, but that it had been signed by him through inadvertence, and in the course of the same day he returned the bill to the House of Representatives as disapproved by him, with his name erased therefrom and with his objections thereto. From the time the bill was laid before the Governor for his approval, till it was returned to the house with his objections and as disapproved, it remained before him and in his possession and control. The only entry in the executive journal in reference to this bill, is under date of the 18th February, 1857, and shows that the bill was disapproved by the Governor, and returned to the house with his objections.
Upon this state of facts we are very clearly of opinion that the act did not become a law. The only constitutional provision bearing on this subject is the 21st section of the 4th article, and is in these words: “ Every bill which shall have passed the Senate and House of Representatives, shall, before it becomes a law, be presented to the Governor ; if he approve, he shall sign it; but if not, he shall return it, with his objections, to the house in which it shall have originated; and the said house shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, a majority of the members elected shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered ; and if approved by a majority of the members elected, it shall become a law, notwithstanding the objections of the Governor; but in all such cases the votes of both houses shall be determined by yeas and nays, to be entered on the journal of each house respectively. If any bill shall not be returned by the Governor within ten 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 shall by their adjournment prevent its return, in which case the said bill shall be returned on the first day of the meeting of the General Assembly after the expiration of the said ten days, or be a law.” This requires the Governor, if he does not approve the bill, to return it to the house whence it originated, with his objections, within ten days, or it shall become a law as if approved, but neither this nor any other part of the constitution says what shall be done with the law after it is approved, or after it acquires vitality by remaining in the Governor’s hands for the ten days. Provision is made for that by the seventh section of chapter ninety-six, Rev. Stat., as follows: “ All public acts, laws and resolutions which have been or shall be passed by the General Assembly of this State, shall be carefully deposited in the office of Secretary of State, and the Secretary of State is hereby charged with the safe keeping of said office, and all laws, acts, resolutions and records, deposited or which shall hereafter be deposited therein.” This law does not prescribe the mode in which the laws shall be conveyed to the secretary’s office, but that duty imperatively devolves upon that department in whose hands or by whose action they become finished and acquire vitality. If a law receives the last sanction required by the constitution to give it vitality, in the hands of the Governor, either by being approved and signed by him or remaining in his hands for ten days, then the duty of depositing it in the secretary’s office may reasonably devolve upon him, while a law which has been vetoed by the Governor, and subsequently passed by both houses, with the constitutional majority, would properly be sent to the secretary’s office from the house in which it was last passed. There is certainly no constitutional or statute law, which requires the Governor to return to either house of the General Assembly, any law which he has approved or which becomes a law by lapse of time, nor' do we understand such to be the practice. It has, however, long been the practice for the Governor to report, formerly through the Secretary of State, and recently through his private secretary, to the house where bills originated, his approval of them. Such report, however, not being a formality required or known to the laws, is not essential to their validity. Such report is but a matter of formal courtesy, and not of constitutional obligation — a courtesy very proper, no doubt, but not a necessary formality. Such report is no part of the proceeding necessary to the making, or imparting vitality to a law. By it no act can become a law, which without it would not be a law, so that in this case, the report made by the private secretary to the House of Representatives, can have no influence one way or the other in determining whether this act became a law or not. Had the Governor returned the bill with his approval upon it to the house, with the message of approval, and without objection, then we think the act would have been beyond his control, and he could not retract his approval, although made by mistake, unless withdrawn by the consent of the house; or had he deposited the law, with his approval upon it, with the Secretary of State, then it would have passed beyond his control and its status would have become fixed and unalterable, except by appeal; although his approval may have been signified by mistake.
The constitution allows the Governor to retain all bills for ten days, for consideration, and while he does retain them, within that time, they are as much within his control, and his action on them is as subject to reconsideration, as are bills in either house of the General Assembly while remaining before them. Take, for instance, a bill which has been returned to the House of Bepresentatives by the Governor, with his objections, and has passed that house, notwithstanding the Governor’s objections, and sent to the Senate, where, in like manner, it has passed, with all the forms of legislation. It has now received all the sanction which the constitution requires to make it a law, and yet no one acquainted with the constant práctico of legislative bodies, will deny that it is perfectly competent for the Senate to reconsider the final vote, and thus take from it that concluding act which had finally completed it; and this right to reconsider remains, so long as the bill remains in the custody of the body proposing to reconsider, unless they have some special rule restraining the right to reconsider. The matter is still in fieri while pending before, and within the control of either house. And it is not an unfrequent occurrence for one house, which has finally passed a bill and sent it to the other house, to request its return, which being done, the vote on its final passage is reconsidered, when it is amended or rejected; and instances are not wanting in the history of our legislation, where bills which have been laid before the Governor for his approval, have been returned to one of the houses of the General Assembly, and then finally defeated, and no one has ever thought of questioning the legality of such a proceeding. And why may not the Governor reconsider his act of approval of a bill while it is yet before him, as well as either house of the General Assembly ? Does he require less time for reflection, or less opportunity to reconsider an inadvertent or an unadvised act ? Is he more likely to be certainly right when he puts his name to a bill than the members of the other department of the government when they vote upon it ? In the one case, the executive acts without the aid of discussion and argument; in the other, the members vote with all the advantages of an interchange of opinion on the subject. The public good no more requires the act of one to be irrevocable than the other. There must be a time when this right to reconsider terminates — and the same rule applies in the one case as in the other — and that is, when the bill or law has passed from the custody or control of the department or body seeking to reconsider. While within such control and custody, the right to reconsider is a necessary incident to the power to act. This right to reconsider is not peculiar to legislative bodies, but is common to all human transactions where there is a discretion to be exercised. An individual may erase his name from a deed, no matter how deliberately it may have been signed, at any time before delivery; and even courts of justice may reconsider their most solemn judgments while they are yet before them. And shall the approval of a law by the executive be a solitary exception ? Shall his name,-, once placed to a bill, become irrevocable, although the pen” is still in Ms hand, and the ink not yet dry ? — even thougff'it may have been placed there by mistake or fraud — inadvertently or urf-advisedlyt?" What great principle of public policy requires'the adoption of such an iron rule in this solitary case, while in all other cases, whether of public or private concern, a party may reconsider and retract — may change his pilose and his decision, while the subject nmtter still remains before him"? The time given by the constitution to the executive during which he may retain a bill, sho^vs-dhat it ^as, expected that he would deliberate, consider aii'ij reconsider, sq long as he cliose¿to retain the bill, within the specified time, and the writing of his name upon it fifty times within that period cannot deprive him of that right, unless he permits the time given him for that purpose to elapse, or by passing it beyond his control. While it is yet before him, neither himself nor the public is concluded by anything which he may do. After that, his constitutional power is exhausted. The subject matter is gone from him, and he may no longer deliberate or retract. He and all others are concluded. The record which declares his acts, can alone speak his intentions.
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 never 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.
Had there been no message of approval delivered to the house by the private secretary of the Governor, notwithstanding his note of approval and signature were placed upon the bill and then erased, probably no one would have thought of claiming that it had become a law, before it was returned as disapproved by the Governor, with his reasons therefor ; and yet, no one can contend, with even a show of plausibility, that such report could make it a law, when it was not a law without it; or, in fact, could have the least influence one way or the other upon the question of its validity as a law. It was a proceeding not known to the constitution, or required or sanctioned by any statute. But even if these reports of approval were entitled to any consideration, in a legal point of view, as in any way strengthening the executive sanction, surely they should, in fact and in truth, emanate from the executive, and not, as in this case, originate with and emanate solely from the private secretary himself. It should be, in truth, the message of the Governor, else the secretary becomes the executive instead of the Governor. Here the Governor authorized the delivery of no such message, and neither he nor the people were bound by it. We are of opinion that the return of the respondent shows sufficient cause, and that the demurrer thereto should be overruled.
Separate Opinion, by
Breese, J.The prominent fact in this case is, that the bill in question was not, for a moment, out of the possession and control of the Governor, after he had placed his name to it, as the facts show inadvertently, until he had erased his name, and returned the bill, with his objections, to the house in which it originated. During all this time, he had complete control of it, and had he placed his approval to it, designedly and understandingly, he could withdraw it.
As in every other department of the government, so in the executive, whilst the matter before it is in fieri, there is the locus pcenilentice — the right to reconsider — to change an opinion expressed, and to cancel a signature of approval.
A power to rectify an error at the proper time, exists with all departments of the government, for they are all liable to err. It is an infirmity of our nature, from which a governor cannot claim exemption.
The executive, in his judgment on a bill, is only concluded by his final act upon it. In this case it is distinctly manifested, by erasing his approval, and returning the bill, with his objections, to the house in which it originated. Ho is not concluded by the previous act of his secretary, in reporting the bill, as approved, to the house, he still having custody and control of it.