‘To avoid unnecessary labor, I shall consider the cases before me as one. They are, in them origin, nature and object, inseparable. The theory of both is, that the general assembly was not adjourned on the 10th of June, but continued in session up to the 21th, finally adjourning on the day last named: hence, Keyes, being a member and attending on those days, is entitled to his per diem compensation allowed by law and appropriated by the act of 1861, to be paid out of the public treasury on the warrant of the auditor, to be issued on the presentation of the certificate of the speaker of the house as to such attendance; and the same fact of the session existing on those days, it is claimed by Harless, gives vitality to the bill in which he. asserts an interest, entitled, “ An act to incorporate the Wabash Bail-way Company.” The prayer of Keyes is, that the auditor be compelled, by mandamus, "to issue to him this warrant; whilst that of Harless is, that the secretary of State be compelled to make a true copy of that act, and certify the same, under, the seal of the State, to be a law of the land, for the reason the governor did not return it to the senate, in which it originated, within ten days after it was presented to him, the senate being then in session. „ The same facts, then, sustain the claim of both relators, and there is, therefore, a manifest propriety in regarding them as one case.
The question which presents itself at the very threshold of the investigation is, is a mandamus the proper remedy ? Waiving, for the present, any consideration of the matters presented by the returns, I will examine the question on the petitions and alternative writs alone. The writs stand as the declarations of the party, and must present a prima facie case, at least.
The writ of mandamus is a high prerogative writ, to be awarded in the discretion of the court, and ought not to issue in any case, unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and must be effectual as a remedy if enforced, and it must be in the power of the party, and his duty also, to do the act sought to be done. It is well settled, that, in a doubtful case, this writ should not be awarded. It is never awarded, unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act. The People, &c., v. Forquer, Breese, 104, and cases cited in notes.
Testing the case of Keyes by these principles, has he shown a clear legal right to this compulsory process ?
The petition and alternative writ allege the fact that the journals of both houses are silent as to any proceedings in either, after the morning of the 11th day of June, until the afternoon of June 23d, when, at the hour of 3 o’clock p. m. of that day, a certain entry appears on the journal. It is further alleged, that the journals do not show how many senators or representatives were present on that day.
The speaker certifies that the relator, Keyes, attended on those days as a member of the house; and it is insisted this certificate is conclusive—that the auditor must act on it, and issue the warrant.
The statute requires the speaker to give a certificate to each member of the amount of compensation to which he is entitled, on presenting which to the auditor, he is authorized to issue a warrant, for the amount specified in it, on the revenue fund. He is not authorized to pay a member in any other mode; but it does not follow he is bound to pay on that. Such a certificate would be a proper voucher for him on the settlement of his accounts, but he may take the responsibility of refusing to accredit the certificate, because he is bound to take notice of existing facts. He must know who are the speakers, and also who are the members of the two houses. He is bound to know who is the governor, who the secretary of State, treasurer and judges of the courts, and also the fact of a session of the legislature at a particular time. Suppose a certificate should be presented to him of the attendance of a member on the first day of July, as at a session then held, would the auditor be justified in issuing a warrafit, when the fact was patent to the whole world, there was no session on that day, nor for weeks previous ? Suppose the certificate should embrace a service of one hundred days, and his own records informed him the session continued but forty-two days, for which he had settled with the members ? No one will pretend that he could not act on his own knowledge of the facts. So the fact of a legislative session on particular days was in the cognizance of the auditor, and he had a right to act on that knowledge. It might have been clear to the speakers, that there was a session on the twenty-third and twenty-fourth days of June, but not clear to the auditor. He must act on his own knowledge of that fact, and take the responsibility of his action. I he decides wrong, a corrective may be found in this writ, if no other legal remedy exists. The silence of the journals from the eleventh to the twenty-third day of June was a significant fact, which the auditor was bound to consider, and the further fact, that a regular session of the legislature is open and notorious, patent to everybody. He cannot shut his eyes, and issue warrants on all the certificates that may be presented. He must act on existing facts. Viewing the allegations of the relator in the most favorable light for him, the case made by them is far from clear, and his right to this writ not unquestionable.
Now, as regards the relator Harless, what does he demand? He demands that the secretary of State shall be compelled to make a true copy of the bill, with his certificate thereto attached, under the seal of the State, that the same is a law by reason of the failure of the governor to return it with his objections to the senate, in which it originated, within ten days, Sundays excepted, after it was presented to him, and deliver the same to the relator.
It is not alleged in the pleadings of the relator, that these facts appear on the register which the secretary is required, by the Constitution, to keep, of the official acts of the governor, or that they are among the records of the secretary’s offic.e.
■ The question at once arises, is there any power vested in this court to compel the secretary to certify a bill, or an enrolled act, to be a law which is not amotig the archives of his office, and legally placed there as a law?
' How can this court compel the secretary to know that this bill was duly presented to the governor, remained with him ten days, and was not returned by him within the time required by the Constitution? His position, as secretary of State, does not, of itself, endow him with this knowledge. What right has the secretary of State to determine any particular bill or. act to be a law of the land ?
What right has he to give a reason why it is a law? Can he, without the authority of law, arrogate to himself the high responsibility of declaring any writing in his possession, having the form of an act of the legislature, but bearing no marks of authenticity, is, for any reason his ingenuity or sense of right may suggest, a law of the land ? If the fact was true, if the reasons alleged existed, beyond all dispute, I do not believe this court could compel the secretary to certify the bill to be a law. And why? Simply, because it is not his duty, under the statute prescribing his duties, so to do.
What is the statute on this subject ? By section 5, chapter 96, Scates’ Comp. 445, the secretary of State is obliged, when required by any person so to do, to make out copies of all laws, acts, resolutions or other records appertaining to his office, and attach thereto his certificate under the seal of State; and by‘section Y it is provided, that all public acts, laws and resolutions, passed by the general assembly, shall be carefully deposited in his office, with the safe keeping of which in his office he is specially charged. Id. How the alternative writ does not allege that the act in question is a law, act, resolution or other record appertaining to the office of secretary of State, nor that it has been deposited with the secretary as an act or a law passed by the general assembly; on the contrary, it is distinctly alleged in the writ that “ on the 19th of June the governor prepared a message with his objections to the bill, and sent the enrolled act, with his original message, by private hands to the lieutenant-governor.” The relator further alleges that the lieutenant-governor, on the 13th of October, informed him that the bill was not in his possession, and on the 16th of that month the relator applied to the secretary of State to learn if the act was in his custody, and being informed that it was, thereupon the relator demanded a copy of it, &c. It is not alleged the act was deposited with the secretary as an act passed by the general assembly, and deposited in his office as such, nor is it anywhere alleged that the act is a public act, for it is only public acts, laws, &c., that this statute declares shall be deposited in the office of the secretary of State. It is very apparent, then, that the secretary of State, from the relator’s own showing, is not in a position, with respect to this act, to be compelled to give a copy of it even, much less to be compelled to certify it as a law, for the reason alleged, or for any other reason.
The alternative writ stands in the place of a declaration—it is the declaration of the relator, and as in an ordinary case commenced by declaration, the plaintiff is bound to state a case prima, facie good, so is a relator in this proceeding. His declaration, in my judgment, makes out no case at all, demanding any other plea or return than a general demurrer, and the demurrer to the return may have this operation. All the material facts being admitted, he shows no title to the relief claimed. It is a case barren of any merits, so far as the relator’s right is concerned, connected with any duty the secretary is by law required to perform.
It will not do to say that this view of the case is technical, and the objections taken are of that character. When the nature of the process demanded is considered, the objections will be found to be substantial, and decisive against the right to the particular remedy sought. They do not touch the question whether or not this act is a law. The only question is, do the facts show the relator entitled to this process ? It would seem to me, the other question cannot properly be raised on a mandamus. Suppose there was no doubt about the fact, that an enrolled bill had passed through all the forms required by the Constitution, save that of approval by the governor, and he had suffered ten days to elapse without returning it with his objections, the legislature being all the time in session, is there any principle of the common law, or any statute in force in this State, requiring or empowering this court to compel the secretary of State, or any other officer, to certify it as a law ? Rone can be found. He cannot be compelled to certify any act to be a law which does .not come into his possession as such, under and by virtue of the law defining his duties, which I have cited. Such a use of the writ of mandamus is unknown to any court governed by the common law, and it is not allowed by any statute.
The inquiry naturally arises here, how and through what channel do laws, acts and resolutions of the general assembly get to the secretary of State, and become records or files of his office, so that he can be compelled to make certified copies of them ?
I know of no other channel than the one marked out by chapter 62 of Revised Statutes, 337, title “Laws.” The legislature has provided no other mode by which to authenticate a bill in the predicament this bill is alleged to be, as a law. The relator’s counsel insist that this statute is no longer in force; that it is obsolete, by reason of the change in the Constitution, abolishing the council of revision. The statute has never been repealed, nor has the legislature enacted any other upon this subject; and if it be obsolete, then there is no mode prescribed. I do not find that this question has ever come before this court for examination. In the absence of any decision on this precise point, I am free to express my own opinion; and that is, that the council of revision, as such, as a power to revise all laws passed by the general assembly, is not abolished by the present Constitution of the State. The power, instead of being deposited with the governor and justices of the Supreme Court, is now deposited with the governor alone. He is, "to all intents and purposes, if the design of such a power is regarded, and not a tenacious adherence to terms, the council of revision. The sections of chapter 62, applicable to this subject, are as follows:
“ Sec. 2. Whenever a bill which shall have passed both houses of the general assembly shall be returned by the council of revision, with objections thereto, and upon reconsideration, shall pass both houses by the constitutional majority, it shall be authenticated as having become a law, by a certificate thereon, to the following effect: ‘ This bill having been returned by the council of revision with objections thereto, and after reconsideration, having passed both houses by the constitutional majority, it has become a law, this day of ;’ which being signed by the speakers of the senate and of the house of representatives, respectively, shall be deemed a sufficient authentication thereof; whereupon the bill shall be presented to the governor, to be by him deposited with the laws in the office of the secretary of State.
“ Seo. 3. Every bill which shall have passed both houses of the general assembly, and shall not be returned by the council of revision within ten days, having thereby become a law, shall be authenticated by the governor causing the fact to be certified thereon by the secretary of State, in the following form: ‘This bill having remained with the council of revision ten days (Sundays excepted), and the general assembly being in session, it has become a law this day of . C. E., Secretary of State.’
“Seo. 4. Whenever the general assembly shall, by their adjournment before the expiration of ten days after the passage of any bill, render the return of such bill by the council of revision within that time impracticable, and the same shall not be returned on the first day of the next méeting of the general assembly, and shall thereby become a law, the fact shall be authenticated in the manner provided in the preceding section.”
By the first clause of the schedule of the present Constitution, as expressed in the preamble, in order that no inconvenience might arise from the alterations and amendments made in the Constitution, and to carry the same into complete effect, it is ordained and declared that all laws in force at the adoption of this Constitution, not inconsistent therewith, shall continue, and be as valid as if this Constitution had not been adopted. In what respect is this act inconsistent with the Constitution ? The Constitution provides for a revision, by the governor, of all laws passed by the general assembly. They are to be presented to him for such purpose, and he thereby becomes a council of revision. There is no other revisory council now known to the Constitution and laws, but the governor. Is there any act, in either of these sections, which that functionary is incompetent to perform ? I can perceive none, and by considering the governor the council of revision, which he truly is, no inconsistency can be alleged. It is scarcely to be supposed that successive legislatures, under the present Constitution, knowing, as they must, the great necessity for some law of this kind, should, for fifteen years, have neglected to provide a law, had they not considered the one in question quite consistent with the Constitution and ample for the purpose. This omission to legislate on the subject may be taken as a contemporaneous exposition of the law making power, that the want was fully supplied by this chapter.
Cases have come before this court, in which, by laws passed under the present Constitution, duties were devolved on the “County Commissioners’ Court,” or on the “Senior County Commissioners,” and we have held, as the County Commissioners’ Courts were no longer in existence as such, but that “ County Courts ” were substituted for them, the term “ County Commissioners’ Courts” should be applied to the County Courts, and the duties would inure to them. The case of Shute v. Ch. and Milw. R. R. Co., 26 Ill. 437, is one of that character ; so is the case of The People v. Thurber, 13 Ill. 554.
I cannot discover wherein these sections of chapter 62 are in conflict, or inconsistent with the present Constitution. They are calculated to give full and complete effect to the law making powers, by an uniform proceeding reaching every case, and they afford, what is a great public necessity, certain conclusive and uniform rules, by which it can be readily determined what acts'of the legislature are laws. The present Constitution does not, nor did the old, execute itself in this particular. Legislation was necessary, and adequate rules are found in these sections. The people should not be left in doubt; they should know certainly what bills are laws. This knowledge they will have, if they are authenticated in the mode prescribed by this chapter, and they can regulate their conduct by them. Courts can judicially take notice of them, and they can be used in evidence as laws without question. A certain and proper mode of proof is furnished not sufficiently provided in, or omitted altogether from the Constitution, and it is not, in my judgment, inconsistent with any provision of that instrument.
But if this chapter is not in force, by reason of inconsistency, no mode is provided by which a bill not returned by the governor within ten days can be deposited in the office of the secretary of State as a law. The secretary cannot, virtute officii, decide what acts make a law. He has nothing to do with the working of the machinery by which laws are made.
If, then, it be assumed, that this bill must be considered as approved by reason it was not returned to the senate within ten days, then it should carry with it the certificate which the governor must cause the secretary of State to put upon it required by the statute, showing that the senate was in session during that time. Without such certificate, the bill could not be certified by the secretary of State, or be published as a law, nor in such case, could any duty, by any possibility, devolve on the secretary, if the bill was in his official custody, to certifiy it as a law, or to give a copy of it to the public printer to be published in the volume of laws. The only safe and practicable rule, then, it must be apparent, is to look alone to the bill, its authentication, and its proper place of deposit as a law, when called on to determine whether a bill is or is not a law. This authentication, by the statute, must be under the sanction of the executive, and the act must be deposited in the office of the secretary of State, and these make up the evidence and the only evidence of the existence of a law. By section 3, chapter 62, such a bill is required to be authenticated by the governor, he causing the fact to be certified on the bill by the secretary of State. Until the governor acts, it is clear the secretary has no power, and no duty to perform. The governor would have a duty to discharge, but this court has decided he cannot be coerced by mandamus to perform any duty. Bissell's Case, 19 Ill. 229.
It may be, should the governor obstinately, and without reason, refuse to cause the secretary to place this certificate upon a bill so circumstanced, having passed through all the forms required by the Constitution, that this court might declare it to be a law, but not by a mandamus. The question could only properly arise in a case brought before the court for adjudication, the foundation of which should be the assertion of a right or privilege claimed under and by force of such an act, and against one who may have resisted that right. And this, it seems to me, is the only proper course to be pursued in such a case.
I am perfectly satisfied this case does not come within the reach of a mandamus; that writ can only be issued to compel a party to act, when it is his duty to act without it. It confers upon the party against whom it may be issued no new authority. It can confer none, from its very nature. The People, &c., v. Gilman, 5 Gilm. 248. This is the first time, in all judicial history, an application has been made for this writ, for the purpose of authenticating a law, and, in my judgment, it cannot be allowed.
But there is another objection to awarding the writ, on the relator’s own theory. He maintains that legislative proceedings can be shown only by the journals of the houses. Assuming this to be so, the alternative writ nowhere shows by that species of evidence that this bill was presented to the governor for his approval during the session of the general assembly. The only allegation upon this head is, “that the record of the excutive acts, as kept by his private secretary, and deposited in the office of the secretary of State, shows that the bill for an act to incorporate the Wabash Railway, was presented to the governor for his approval with other bills passed at the same session which have been approved, but said record is silent in regard to the disposition of said bill. This allegation states no time at which this bill was presented, nor that the fact of its presentation was entered on the journal of each house, nor is it alleged the legislature was in session when it was presented. What does the Constitution prescribe in this regard?
Section 21 of article IV provides, that 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 approves 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 journals and proceed to reconsider it. "" * 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, &c.
The tenth joint rule of the two houses requires, after a bill shall have been signed by the speakers of both houses, it shall be presented by the committee on enrolled bills to the governor for his approbation. The said committee shall report the day of presentation to the governor, which time shall be carefully entered on the journal of each house. That this rule has the force of a law, will not be questioned. It was made to give full operation to the Constitution, and, taken in connection with it, requires that the legislature shall be in session when a bill is presented to the governor; and the reason is obvious. When it is presented, the responsibility of the governor commences, and from the entry on the journal of the time when, the ten days are to be computed. If it is returned by the governor within ten days, then a new duty devolves at once upon the house to which it is returned. That house must enter the objections at large on their journal, and must proceed to reconsider the bill. Certainly, then, the houses must be in legislative session when the bill is presented to the governor, and when it is returned by him with his objections, else this clause of the Constitution is an idle provision, and the law of the two houses also. This court would not, of course, inquire, when an act has been approved by the governor and deposited in the office of the secretary of State as a law, whether the legislature was in session or not when it was presented to him, nor whether the time of presentation had been carefully entered on the journal of each house. There could be no propriety in instituting any such inquiry in regard to any act which has received executive sanction; but when it is asked of the court to declare an act to be a law which wants that sanction, has not been deposited with the secretary of State, and is not authenticated in any manner, in such case the requirements of the Constitution and law must be looked into and applied.
As to the entry of its presentation on the executive journal, kept by the private secretary of the governor, that is for the convenience of the governor alone. I am not aware of any law requiring the governor to keep such a journal, nor any making it evidence anywhere. By section 24 of article IY of the Constitution, the secretary of State is required to “ keep a fair register of the official acts of the governorbut this has no relation to duties a standing joint committee of the two houses is required to perform. By the journal, and by that only, can the fact of presentation, during a session of the legislature, be legitimately established, and this on the relator’s own theory; on his theory, this objection, if there were no other, would be fatal to his pretensions.
I have now examined the case on the showing of the relator only, without any reference whatever to the facts in the return, and here I might, with propriety, close, since by that showing no claim whatever is established to the process demanded.
The respect, however, which I sincerely entertain for the counsel who have managed the case, and who have presented arguments in its support, not'only in the most plausible and persuasivecform, but with a force and power seldom exhibited in any forum, impels me to a further examination of it, although it be supererogation, upon the facts presented by the returns, and admitted by the demurrer.
The auditor returns to the alternative writ, as cause why a peremptory mandamus should not issue, that there was no session of the general assembly.on the 23d and 24th days of June; that the general assembly had been adjourned by the governor on the tenth day of June, and that on that day the session closed, the accounts of the members and officers of both houses being certified to by the speaker of each house, as the law required, to the. respondent, as auditor, the members, or a large proportion of them, received and receipted for their per diem compensation up to the tenth of June, since which time the journals are blank, and since then there has been no legislative session of the general assembly. He further returns that on the twenty-third and twenty-fourth days of June two members of the senate came together in the capítol, at the seat of government, and four members of the house, and then and there caused certain entries to be made on the journals of each house, which were false and fraudulent, no quorum of either house being then present, and they themselves acting without authority. To these allegations the relator demurs, the effect of which is to admit all the facts competent to be pleaded, and which are well pleaded, but not any legal inferences which may have been drawn from them. Thus the fact that the governor issued an order to adjourn the legislature on the tenth of June, is admitted, but not the inference which the auditor draws from it. The relator insists that the executive order was void, and therefore could not have the effect to adjourn the legislature. So, too, of the assemblage of two members of the senate and four members of the house on the days named, is admitted, but the inference that no se'ssion was held on those days is not admitted. $Tow, if it can be shown, by fair argument, that the legislature was adjourned on the tenth day of June, or terminated its session on that day, without providing for a session at some subsequent period, then the assemblage on the' twenty-third and twenty-fourth days of June, as set out in the return, was of no validity, and consequently, the auditor should not be compelled to issue a warrant on the treasury, to the relator for his attendance on those days.
So in the case of the relator Harless. The real and only question1 in which he has any special interest, is, do the facts ¡stated in the return of the secretary, and admitted' by the demurrer, make the bill in his possession, entitled, “An act to incorporate the Wabash Railway Company,” a law of the land, or do any other facts legitimately appearing in the record, have that effect. In other questions discussed on the hearing, the relator has no interest, beyond that every. citizen has, in the proper action of the functionaries of the government. If it be a law of the land, and in his possession as such, there can be no doubt of the power of this court to compel the secretary to certify a copy of it, under the seal of State, of which he is the keeper. What are the facts? The secretary returns, in substance, that the bill is not in his possession as secretary of State, as a law; that it has not been authenticated to him as such; that he received it from the lieutenant-governor with the written objections of the governor to its becoming a law, bearing date June 19, 1863, accompanying the same; that he was enjoined by the lieutenant-governor to keep the same safely, so that they could be produced on the first day of the next session of the general assembly, and then to be laid before the senate. If, then, he is not in possession of the bill as a law—if it has never been authenticated to him as such—if it has never come to his official knowledge and keeping as a law, how can a mandamus issue to compel the secretary to do that which it is impossible for him to do. The facts he has returned are the existing facts, on which the mandamus must operate, and the writ cannot change them. It is, in my judgment, entirely competent for the secretary to place himself on these facts. He has no duty to perform,' in this regard, the performance of which we can enforce.
But waiving this, for the present, let us examine and see if the legislature did, by their adjournment, prevent a return of this bill to the senate, in which it originated.
What does the term adjournment mean, as here employed, in the Constitution ?
Has it that restricted and technical meaning counsel are pleased to place upon it? What does the Constitution say? “ 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.” What is the object of the section of which this is an extract ? Clearly to give to the governor time sufficient to revise all laws which may be presented to him for his approval, and that there shall be a body in legislative session, during the ten days, to which he can communicate his objections, if he has any.
The Constitution of 1818 used this phraseology: “ unless the general assembly shall, by their adjournment, render a return of said bill in ten days impracticable.” Although there is a slight difference in the language of the two instruments, I cannot think the sense and meaning is changed, of was intended to be changed, the object of both provisions being essentially alike. The meaning, then, is simply this. The governor shall have ten days for deliberation on the question of approval or disapproval of every bill presented to him, and during that time it shall be practicable to make a return of such as he may not approve to the house in which they originated. The framers of the Constitution did not intend to require of the governor a physical impossibility, but only to lay an injunction upon him to return, with his objections, every bill to the house in which it originated if he did not approve it, within ten days, if the general assembly was in legislative session capable of acting on such bills when so returned.
The object of giving this deliberation and qualified negative was to guard against hasty, improper, or unconstitutional legislation. By this provision, the governor has it in his power to compel closer scrutiny, and a more thorough examination into all bills about to become laws. This action of the executive is upon his official responsibility, from which the Constitution does not permit him to escape, for if he fails to act upon the bills presented to him, within the time prescribed, having the opportunity so to do, the bill is considered as approved by him. He is required to act by approval or disapproval, and to communicate the result of his deliberations to the house in which the bill originated, only, however, on the condition there be such a house with whom it is practicable to communicate. If this be the true exposition of this provision, then it is very clear, if there be no such house in fact, at the expiration of ten days, Sundays excepted—no such deliberative body—no such visible organized assembly to receive the return of the bill with his objections, the return would be an impossibility. If the houses disperse, and abandon the capítol, leaving no existing legislative body in fact, capable of receiving the governor’s communication, is not the effect, for all practical purposes, the same as if the legislature had adjourned in due form, leaving the evidence thereof on the journal ?
If the house in which a bill originates may disperse, abandon their hall and legislative duties, and the members return to their, homes, thereby rendering it impracticable for the governor to return a bill to such house, and by this means, pending executive deliberation, convert the bill into a law, then may such house nullify this clause of the Constitution, and practically destroy the qualified negative, or veto power, as it is called, of the governor. It must be conceded, the mere return of a bill is not of the substance of this constitutional provision. The passage of it by the two houses, according to the forms prescribed, the deliberation and action of the governor thereon, by approval or disapproval, and, in case of disapproval, the further consideration of the bill by both houses, and its passage there once more and by a majority of all the members elected of each house, are the great objects sought by the Constitution, and the •return within the ten days is provided to fix executive responsibility in the making of laws, leaving him no way of escaping final responsibility.
Can it be that by a legal fiction the legislature will be deemed in session, when in fact there is no such organized or assembled body, and when the effect of such legal fiction is to nullify a part of the Constitution by a practical overthrow of the governor’s negative. Fictions are allowed in support of rights claimed under law, not in derogation of them. If the governor had, within ten days, returned the bill to the senate, wheré it originated, without having acted on it, by approval or disapproval, such return would not have made the bill a law, and yet it is claimed, because the bill was not in fact returned to a house which had- no actual existence, the bill became a law, though in due time acted upon, and negatived by the governor. This position, if sound, would enable one house of the general assembly to evade, at any time, the constitutional effect of his negative. To give full effect to this negative power of the governor in legislation, the adjournment which shall, practically, deprive the executive of the ability to communicate with the house in which a bill shall have originated, according to legislative or parliamentary usage, must, in my judgment, be taken as the adjournment contemplated by the Constitution. It is equivalent to it in all respects. If by reason of an insurrection, invasion, by pestilence or by mob violence, a legislative body is suddenly dispersed and broken up, leaving no adjourning order on the journal, and the governor be, thereby, prevented from making return of a bill with his objections in writing, within the ten days, will it be seriously said, the bill has thereby become a law ? If so, when ? at what point of time, and what would be competent evidence of its existence as a law \
By the Constitution, acts of the legislature of a public nature do not take effect as laws until the expiration of sixty days from the end of the session at which they are passed, unless in case of emergency the general assembly shall otherwise direct. Art. Ill, § 23. Hence, it becomes material, sometimes, to inquire, when did the session come to an end, and what certain uniform rules exist, by which it can be readily ascertained when bills become laws ? Here, too, it would seem the end of a session is regarded the same as an adjournment; they are equivalent expressions for one and the same contingency.
Now, was there a senate, a legislative body in fact, at the place where the law directed the legislature to assemble, during any portion of the time allowed the governor for deliberation %
The return states the fact that there has been no legislative session of the general assembly since the tenth day of June, unless an assemblage,, occurring on the 23d day of June, of three members of the senate and four members of the house, shall be considered such session; that in the interval, no legislative proceedings were had in either house. The relator insists that parol evidence of this fact, which is not denied by him, is inadmissible. He insists, by the Constitution, each house is required to keep a journal of its proceedings, and having shown by the journals that there was a regular meeting of the general assembly at the time appointed by law, the presumption is, it continued in session until an adjourning order shall be entered on the journal.
Section 12, article III, of the Constitution, requires that each house shall keep a journal of its proceedings and publish them. The proceedings, then, constitute the journal; one can have no existence without the other, and in the absence of both, there can be no houses. The journals must show proceedings to establish a legislative session. The journals do not show any proceedings from the tenth to the twenty-third of June, consequently there was no legislative session during all that time. Hor do the journals show a meeting of a quorum of each house, on the twenty-third, nor that there was any vote taken on the tenth to adjourn to that day, nor do they show an adjournment from day to day by a less number than a quorum. The journals must show these things affirmatively. Ho presumption can be indulged against the journals. By their very silence in these respects, they speak a negative too distinctly to be misunderstood. If, then, there has been no general assembly in session since the twelfth of June, how was it possible for the governor to return the bill with his objections ?
The inquiry is pertinent here, if the houses were not in session, after the twelfth of June, what had become of them ?
The record answers the question.
An attempt had been made, by joint resolution, passed by the senate, to adjourn both houses on the eighth of June. When it came to the house, it was there amended by substituting the twenty-second for the eighth, in which the Senate refused to concur. On the next day no quorum appeared in the senate, nor in either house on the tenth, and no effort appears to have been made to compel the attendance of absent members, as provided by section 12, article III of the Constitution.
Thus matters remained, no agreement of the houses on a day of adjournment, no quorum of either house, and, of course, no transaction of any legislative business, for that requires a quorum. On the tenth, the governor, conceiving from these facts that a case of disagreement as to the time of adjournment had arisen, called into exercise section thirteen of article IV-of the Constitution, providing: “In case of disagreement between the two houses with respect to the time of adjournment, the governor shall have power to adjourn the general assembly to such time as he thinks proper, provided it be not a period beyond the next constitutional meeting of the same.” This power the governor exercised in the form of a communication from the executive department, which was read, on the tenth, in each house. It is not denied that on that day the account's of all the members and officers of both houses were duly certified by the speaker of each house, as usual at the close of every session, and as by law required. It further appears that nearly all the members of the house, and all the members of the senate except one, together with the officers, received and receipted for the amounts respectively due them. Neither the executive order of adjournment, nor any adjourning order of either house, appears on either journal at this date. The last entry on the house journal, prior to the twenty-third of June, is a protest against this act of the executive, reported from a special committee on the tenth, and on the senate journal the last entry is as follows:
“ Thursday, June 11th, 1863. Senate met pursuant to adjournment.”
There is no house journal shown of any proceedings by that body after the tenth, until the twenty-third, nor any of the senate from the eleventh to the twenty-third.
Now, admitting the executive order was unwarranted by the Constitution, do not the 'journals show an abandonment of all legislative business, and a breaking up of the session immediately on its promulgation ? What does the protest declare % It sets out by declaring while, on the tenth of June, 1863, the general assembly were in session, engaged in the discharge of their duties, the governor made an attempt to dissolve the body; which attempt, illegal, unconstitutional and outrageous as it is, must inevitably result in the cessation of any further legislation at this time. It charges, among other things, that by his adjourning order the governor has defeated the bill appropriating one hundred thousand dollars for the relief of the suffering soldiers; that he has defeated the bill for the sale of the coin in the treasury; that he has defeated the general appropriation bills; that he has defeated the general and local legislation of the State of pressing necessity, and has done all these things without the shadow of a legal pretext; that it was a scheme to block the wheels of government.'
If this be so, then most clearly the general assembly ceased to be in legislative session, for if it continued in session, after the governor’s communication, it could have passed all those bills in spite of the governor.' His concurrence was not necessary for such purpose. The entire legislative authority of this State is vested in the general assembly. The executive cannot restrain, control or direct that body in the slightest degree in the passage of bills. His function is inert until the houses have acted, and then he cannot prevent a bill from becoming a law, if the majority of all the members elected in each house insist on making a bill a law.
If the members of the general assembly deemed the order of the governor illegal and outrageous, having no warrant in the Constitution, what was their plain duty ? To submit to it, with a protest against it, which they did, or resist it, which they did not do ? If the general assembly, having power by the Constitution to preserve its sessions, omit to exercise the power, and yield to an unconstitutional mandate of the executive, whose fault is it, and where is the remedy ? The legislature was fully competent to decide upon the act of the governor, and they did decide upon it. They adopted it, ceased legislative business, and returned to their constituents.
By section 12 of article III, two-thirds of each house constitute a quorum, but a smaller number may adjourn from day to day, and compel the attendance of absent members. Of the house, fifty-seven members made a quorum, forty-three of whom could pass a bill; of the senate, seventeen, any thirteen of whom could pass a bill. Fifty-six members of the house, and thirteen members of the senate, signed the protest. No effort appears to have been made to compel the attendance of one additional member of the house, and the requisite number of senators. Had it been made, legislative business might not have ceased, and all the bills specified in the protest, and all others the public exigencies demanded, might have been passed, and presented to the governor for his approval.
Was there any obstacle in the way? If the governor should have refused to receive them, and consider them, then the responsibility would have been fastened upon him, and it might be justly charged that he, by his arbitrary conduct, had “blocked the wheels of government,” and defeated important public measures.
If he had no power to adjourn the general assembly, were not the members bound to remain in session ? If, on the other hand, he had the power, and this was for the legislature to decide, they were bound to acquiesce, leaving the responsibility where it would justly belong, to the governor and to him only. The question was one for legislative decision, with which this court cannot interfere.
It will not be denied that, by the Constitution, the general assembly, in regular legislative session, has power to continue its session up to the time for which the members of the lower house are elected, and the further power to preserve the session, by the action of a smaller number than a quorum of each house. If they fail to exercise this power, cease their labors and disperse, on the unauthorized interference of the executive or otherwise, what is the inevitable consequence ? Why clearly that the session is at an end. There are no other means recognized by the Constitution, by which the general assembly, when in session, can defeat the efforts of faction to terminate it, save by a resort to this power, bestowed for the very purpose of keeping a quorum together. But it is said our legislative history shows this provision of the Constitution is impotent for good. Is this so ? Has it been proved by experience that this power is worthless ? Has any presiding officer of either house ever attempted to test it, to try the strength of the Constitution in this regard, when sessions heretofore have been broken up factiously by the willful absence and desertion of the members ?
This power of “ a smaller number than a quorum,” which the house has fixed by one of its rules at fifteen, to adjourn from day to day and compel the attendance of absent members, is understood to be plenary, and to embrace not only the power of the officers attending upon the houses, but through them the posse civitatis. It implies the power to arrest and imprison members, and to keep them in arcta custodia, so that they may have their bodies in the respective houses to which the fugitives may belong, to make np a quorum. These efforts, under this grant of powers, may be continued de die im, diem, up to the time of the expiration of the term of service of the members of the house, up to the period when- the general assembly expires by lapse of time. Fifty-six members of the house signed the protest; one more would have made a quorum of that body. Thirteen members of the senate signed it; four more would have made a quorum there. It was a question for these members to decide whether they should call into action this power, and preserve the session or close the session on the mandate of the governor. They chose the latter, and perhaps wisely. It may be, an attempt to exercise this power, under the then existing circumstances, might not only have proved fruitless, but have been productive of disastrous results, involving the peace of the country. These were questions eminently fit for the members to decide. They have decided them; have acted on the decision made; have made an informal adjournment, by closing the session, by ceasing to transact legislative business, by receiving their pay and by returning to their constituents, evincing, on their departure, no intention to resume their session at any future time.
But it is said this is not a recognized mode of terminating a session; that the executive order being illegal and void, no legal consequences could flow from it, and therefore, the acquiescence and dispersion of the members was illegal and contrary to the Constitution.
This may all be admitted, still it does not affect the question. The deed was done, and no power on earth can undo it, nor can the error, if it was one, be corrected by this court. The members of the legislature are not amenable to this court, nor is the body itself. It cannot be denied that the general assembly had the right to determine for itself the alternative presented. It was a question put to them distinctly and directly, of power or no power, and they decided it by their action, and there is an end of it. This court has nothing to do or say in the premises, approbatory or condemnatory.
I am at a loss to perceive if this power to compel the attendance of absent members is suffered to remain dormant, how a session of the legislature can be preserved against the efforts of factionists and disorganizes to break it up, and in this manner “ block the wheels of government.”
Admitting then, that the act of the governor was, in the language of the protest, “ illegal, outrageous and uneonstitutional,” both houses having adopted it and dispersed, they thereby put an end to the session, evincing at the time no intention to resume it. This, for all practical purposes, was an adjournment sine die.
It would have been quite parliamentary to have entered on the journal the governor’s message adjourning them. The senate did so, it would appear. The neglect of the house to do so does not make the order less effectual. Its tone and style were well calculated to arouse feelings of indignation and resentment, containing, as it does, a covert censure on the conduct of the majority, in which the executive had no right to indulge. The majority was not responsible to him for their conduct; he was not placed over the legislature as their censor or master. It is not surprising, then, they should not have treated his communication with the respect one more decorous, emanating from the chief magistrate, would unquestionably have received.
But suppose the governor had not interfered at all, had sent no communication to the house ordering an adjournment, and both houses, by their own voluntary action, without any proposition or vote, had unceremoniously abandoned their halls, the speakers of each house had certified to the accounts of the members and ofiicers up to1 the day of abandonment, and they had received their compensation up to that day, and dispersed, leaving the hall deserted, and were never after that day seen together in session as an organized assembly, so that the governor could communicate with it, would it be a rational conclusion, that they were still in session as a legislative body, by mere force of the fact that they were at one time in regular session, and no adjourning order appeared on the journal of either house ? Such a presumption would be destroyed by the fact that the journals would not show the entry of any legislative proceedings after the dispersion. Those proceedings, as I have before said, make the journal. If there are no proceedings, there is no journal, and if no journal, no legislative body in session.
But it is said, this is a question of intention, and the protest shows the houses did not intend to adjourn. The answer to this is, the intention must be gathered from the final fact, and that fact is, the session terminated by dispersal of the members, and that shows a change of intention, and especially when taken in connection with the other prominent fact, patent to the whole world, that since the 10th of June no organized legislative assembly has been seen in session. The only constitutional mode, of which I am advised, by which the houses could have made manifest their intention not to adjourn, was by making an issue with the governor, under the protecting shield of the Constitution. By rule 57 of the house, fifteen members of that body could have preserved its session, and a smaller number than a quorum of the senate could have preserved its session.
If, then, there was no senate in session, it was not possible for the governor to return the bill to them, What more could he do with it than is alleged in the return he did do to preserve his negative ? Deliver it to the presiding officer of the senate, to be by him laid before the senate at its next meeting; or he might retain it in his own custody, or so deposit it that he might preserve control of it, until such time as he should be enabled to communicate with the senate. In my judgment, this provision of the Constitution means no more than this : if the legislative session has not come to an end, at the time the ten days expire, the governor must return the bill to the house in which it originated, or it will be a law. If the session has terminated before that time expires, the governor can return the bill at their next session, and on the first day thereof, failing in this, the bill becomes a law. Is not this a reasonable and common sense view of the subject ? The court, therefore, has a right to treat this bill as suspended by reason of there being no senate in session to whom the governor could return it. This is the condition of the bill, if the substance and spirit of the Constitution are to be regarded. If this is not so, then it must be conceded that the dispersion of the senate, howsoever produced, paralyzed the negative power of the governor, and nullified a plain and salutary requisition of the Constitution in making laws.
If there be no error in these views, it is impossible that I could consent to award any process to the secretary of State, to compel him to certify this bill to be a law—to give to a bill which, according to parliamentary usage, and our own system of law making, is yet in fieri, is yet in an unfinished state, the force and effect of a law.
The session having thus-terminated, it is needless to inquire if it could be resqmed at a future day, without a previous vote of the two houses, or by the proclamation of the governor. Should a legislative body be dispersed by any sudden irruption, or insurrection, or by any external force, the power might, perhaps, remain, and the duty also, to reassemble without any previous vote for such purpose. When such dispersion is the result of its own action, I know of no mode by which it can be brought together again, as a legislative assembly, in the absence of such previous vote, without a call from the executive. Blackstone says, if, at the time of an actual rebellion, or imminent danger of invasion, the parliament shall be separated by adjournment or prorogation, the king is empowered to call them together by proclamation, with fourteen days notice of the time appointed for their reassembling. 1 Black. Com. 145, ch. 2. The spontaneous meeting of-all the members, except in the case stated, at a time not appointed by law, and without a previous vote for such’purpose, would avail nothing. The executive, if he desired, could not recognize.it. as a legislative body, nor could it perform a legislative act, having any binding authority. This being ,so, it follows, a less number .than a quorum cannot meet and hold a legislative session, no matter under what convictions they may assemble, or what rights they may suppose they can preserve by such meeting. It would be a proceeding not sanctioned, by our Constitution or laws.
I have now examined and discussed all the questions .properly belonging to these cases, in view of the relief severally sought. With their political aspect, so far as it may be regarded as a controversy between the executive and legislative departments, this court can have no jurisdiction to interfere in its settlement. Ror could it be settled by any decision it might pronounce. What has been done this court cannot undo, nor has it the power to correct any errors that may have been committed, nor is it their province to sit in judgment upon the political action of either of those departments. The judicial department was never designed to be the arbiter of mere political controversies. Should it assume that unpleasant office, so incompatible as it is with its legitimate duties, its decisions upon them, however honest they might be, however well sustained by reason and authority, would fail to satisfy the public mind, excited as it always' is, by the agitating topics which enter into such controversies. Partisans and demagogues on one side or the other of such questions, will not be slow to. arouse resentment against the court, if the decision does not accord with their views of right and justice, and its members will be exposed to assaults, against which they cannot defend, if they have yielded alone to the suggestions of their own judgments, and listened to no other monitor than their own consciences. The proper forum in which to settle such controversies, is in the great forum of the people. There it is perfectly legitimate to appeal, not only to reason, but to every passion and prejudice, and to the political sympathies also, of the tribunal whose judgment is invoked. That august tribunal is eternally sitting in judgment on the conduct of all public functionaries, and their judgments are recorded in public opinion.
The question, therefore, whether a disagreement existed between the two houses with respect to the time of adjournment, calling for the interposition of the executive, and authorizing it, is not for this court, on this application, to decide. Had the legislature remained in session, after the receipt of the executive communication of the tenth, and by a quorum of each house continued its legislative business by passing bills, and presenting them to the governor for his approval, and the governor should have failed to consider them, and return them as prescribed by the Constitution, on the plea that the general assembly was adjourned, then, in a proper case brought here for adjudication, the question of the constitutionality of his act would be distinctly presented, and would, of necessity, have to be decided. When such a case comes before me, I shall endeavor to be prepared to decide it.
In every view I have been enabled to take of this case, I am well satisfied the alternative writs should not have been awarded in the first instance, and I am further satisfied, by the facts stated in the several returns on which I have commented, and which are properly pleaded and not denied by the relators, that the demurrers to the same should be overruled.
I have purposely avoided all consideration of other matters presented by the return of the secretary of State, such as the procurement of the passage of the bill through the senate, by the fraud and misrepresentation of the senator having it in charge. The secretary does not pretend he has any actual knowledge of these facts, and if he had, and the bill had received the proper authentication, and had been deposited with him as a law, I am not of the opinion he could use such facts, in justification of a refusal to give a certified copy of it. hTor have I discussed the question, whether the governor was allowed ten days within which to deliberate.- I am inclined to concur with my brother Walker in the views he has presented on this point, and to hold, with him, that a natural day was intended by the Constitution.