Dissenting Opinion.
Jordan, J.I am unable to concur in the result reached in this case by the majority of the court. The question involved is one affecting not merely the right of appellant Woessner to the fees that he claims, but is one of great public concern, namely: Can the will of the people, expressed through their duly constituted representatives composing the legislature, be defeated by the failure or neglect of the executive department to comply with the express mandate of our Constitution.
The conclusion of the majority opinion is that the act in dispute was not a law, because the General Assembly at the session of 1908, did not pass the bill over the objection of the Governor. But certainly it cannot be said that the General Assembly should have acted in a matter, when it was afforded no opportunity so to do. The question in respect to the valid existence of the statute involved hinges upon the requirements of article 5, §14, of our Constitution, which is set out in the majority opinion. It will be observed that by this section it is provided that “every bill which shall have *174passed the General Assembly shall 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, which house shall enter the objections, at iarge, upon its journals, and proceed to reconsider the bill. * * f If any bill shall not be returned by the Governor luithin three days, Sunday excepted, after it shall have been presented to him, it shall be a law without his signature, unless the general adjournment shall prevent its return, in which case it shall be a law, unless the Governor, within five days next after such adjournment, shall file such bill, with his objections thereto, in the office of Secretary of State, who shall lay the same before the General Assembly, at Us next session, in like maimer as if it had been returned by the Governor.” (Our italics.)
It will be observed that the part of article 5, §14, that I have embraced in italics, deals with the return of the bill by the Governor after it has been presented to him. After being presented to the executive, if it is not returned by him within three days, Sunday excepted, the Constitution declares that it shall become a law without his signature, unless the general adjournment shall prevent its return, in which ease the Constitution prescribes that the Governor shall file such bill, together with his objections, in the office of the Secretary of State, who shall lay the bill and the Governor’s objections thereto before the General Assembly at its next session, "in like manner as if it had been returned by the Governor.”
The manifest purpose of the Constitution in requiring that a bill, after it is passed by the General Assembly, shall be presented to the Governor, is to afford him an opportunity to consider its provisions, and either to approve, by affixing his signature, or to disapprove, by withholding his signature, and returning it with his objections to the house in which it originated.
Requiring the return of a disapproved bill, as provided by *175the Constitution, is for the evident purpose of affording the General Assembly an opportunity to reconsider it, and to pass it, notwithstanding the executive’s objections, and thereby prevent his veto from becoming absolute.
The Governor of the State is the head of the executive department. Massey v. Dunlap (1896), 146 Ind. 350.
The office of the Secretary of State is but a subdivision of the executive department. French v. State, ex rel. (1893), 141 Ind. 618, 29 L. R. A. 113.
It is disclosed by the record in this ease that the bill in question, after it was passed by the General Assembly at its session in 1907, was received by the Governor, but was not returned by him to the General Assembly, with his objections, on account of the general adjournment of that body. Accordingly, within five days after the general adjournment, the Governor filed the bill, with his objections thereto, in the office of the Secretary of State. In September, 1908, the General Assembly was convoked in special session upon the call of the Governor, at which session, under the provisions of the Constitution, the bill, together with the Governor’s objections thereto, was required to be laid before the legislature, or returned to that body by the Secretary of State, “in like manner as if it had been returned by the Governor. ”
The return of a bill, disapproved by the executive, to the General Assembly is quite essential under the Constitution in order to prevent its becoming a law; as much so as is its presentation to him after its passage in order that it may become a law under the constitutional requirement.
When the Governor disapproved the bill here involved, he was, under the circumstances as shown in this case, empowered by the Constitution to file it, with his objections thereto, within five days next following the adjournment of the General Assembly, in the office of the Secretary of State, which office, as heretofore shown, is a subdivision of the executive department. After the bill is filed in the secretary’s office, the Constitution points out the agency through which the *176bill, with the Governor’s objections thereto, shall be returned to the General Assembly at the session next following. The return, according to the Constitution, is to be in like manner as if it had been returned by the Governor had he vetoed it when the legislature was in session. Such return affords that body, at its next session, an opportunity to take such action upon the vetoed bill as the Constitution provides shall be had. The bill was not returned to the legislature at the special session of 1908; consequently, no opportunity was afforded that body to reconsider it and pass it over the Governor’s objections. In my opinion, it must necessarily follow that at the close of this special session the bill became a law by the express mandate of the Constitution, regardless of the Governor’s objections thereto.
If this is not true, then the veto of the Governor became absolute; a result in no manner contemplated by our Constitution, or by any other so far as I have been able to discover. It certainly was not intended by the framers and ratifiers of the Constitution that the Secretary of State, by sheer neglect or failure to comply with the constitutional mandate in respect to the return of the bill, could defeat the will of the legislature, or rather, that of the people as expressed through that body. If this is true, then our fundamental law should be amended or changed in order to prevent such a result in the future.
Doubtless the failure of the Secretary of State to comply in this case with the duty enjoined upon him by the Constitution was due to a mistake, and not to any intention on his part to prevent the bill from becoming a law; but the cause to which his failure or neglect may be attributed is not material, the result thereof must be the same, regardless of the cause that produced it.
It cexfainly is untenable and unreasonable to assert that it was in any manner the duty of the legislature at the special session of 1908 to go upon a voyage of discovery, in order to ascertain what action the Governor had taken in *177respect to this hill that had been, passed at the session of 1907, and presented to him at that session, or to see that the Secretary of State return it to the legislature as required by the Constitution. It had a right to assume that if the bill had been vetoed by the Governor, and filed with the Secretary of State, as authorized, the Secretary would discharge his constitutional duty and return the bill at the special session for legislative action. It is wholly untenable to assert that the fact that said act did not appear in the volume containing the laws passed at the session of 1907 was notice to the legislature, either actual or constructive, that the bill for the act had been vetoed by the Governor. Such fact could afford the legislative department no notice whatever. Hence it cannot in reason be said that that body was put upon inquiry, and that it was its duty to look after the bill and cause the Secretary of State to return it as provided, and if he did not, to take proceedings against him, as the majority opinion holds, in order to coerce him to discharge his duty. The case of Tarlton v. Peggs (1862), 18 Ind. 24, lends no support to the majority opinion. The sole question involved in that case was in respect to the power of the Governor, after he had filed the act with the Secretary of State, to file objections thereto, and thereby defeat it, as was claimed.
In my opinion the act involved is valid, and the judgment below should be reversed.