(dissenting.) — The journals of the House of Representatives and of the Senate show that House Bill 323 was signed by the Speaker of the House and by the President of the Senate on March 22, 1911. Its title foreshadowed an act “to provide and create a commission form of government and to establish same in all cities of Alabama which now have, or may hereafter have, a population of as much as twenty-five thousand and less than fifty thousand,” etc. It also appears from these journals that on March 22, 1911, the bodies adjourned to March 24, 1911; that on March 24, 1911, they adjourned to March 29, 1911; and that on March 29, 1911, they adjourned till March 31, 1911.
It is. con ceded that there is no allusion in the journal of either body to House Bill 323 oh March 24th and March 29th, the days on which the bodies were in session. On March 31, 1911, the House Journal recites that the House concurred in and adopted the amendment proposed by the executive to House Bill 323, setting out the amendment proposed by the Governor, as well as the executive’s message, dated March 31, 1911, in that connection.
The respondents would justify their tenure of the offices of commissioners of the city of Montgomery upon the proposition that the amendment proposed by the executive on March 31, 1911, became a part of the act establishing the commission form of government in the city of Montgomery.
*608Under the bill as signed by the presiding officers of the two houses on March 22, 1911, two commissioners, with the mayor, were to constitute the governing body of the city; the two commissioners to be elected by the people. The amendment proposed by the executive provided for a commission of five, four of them to be appointed by the executive, and the then mayor to be the fifth.
The relator (appellant) insists that the amendment proposed on March 31, 1911, by the executive, and on that date adopted by the houses, never became a part of the act in question, for the executive’s failure or inaction for more than six days after the presentation of the bill to sign it, or to veto it, or to propose an amendment thereto, according to the requirement of section 125 of the Constitution, operated to impress the act,.as signed by the presiding officers of the two houses on March 22,1911, with the character and quality of a complete statute, incapable of change or amendment or repeal, save in and by recourse to the constitutional methods of changing, amending, or repealing that which is hlready law.
It thus appears that the solution of the issue presented is to be found in the determination of the inquiry, Did the amendment proposed, March 31, 1911, by the executive become law? What is the km is a matter, necessarily and in respect of finality of pronouncement, committed for decision to the judicial department of the government, when properly invited to do so.— Cooley’s Const. Dim. pp*. 76, 77, 131, 133, 228; Walnut v. Wade, 103 U. S. 683, 689, 26 L. Td. 526; Town of South Ottawa v. Perkins, 94 U. S. 260, 267, 24 L. Ed. 154; 8 Cyc., pp. 806, 807, 843.
In this instance, the judicial function is invoked to determine whether the amendment suggested by the *609executive became law under procedure conformable to constitutional requirements: It is’ only by observance of those requirements that law may be enacted; and whether such requirements have been observed in the given case is the subject of judicial inquiry and- determination. — Jones v. Hutchinson, 43 Ala. 721, 724, 725; Moog v. Randolph, 77 Ala. 597, 599; Cooley, pp. 186, 187, Gardner v. Collector, 6 Wall. 511, 18 L. Ed. 890; Town of South Ottawa v. Perkins, 94 U. S. 260, 268, 269, 24 L. Ed. 154. Whether these constitutional requirements- were, in a particular instance; -observed-is a question solvable alone by the court in the lights' of its satisfactorily advised judicial Imoioledge, ■ and/so necessarily excluding the-advice or service of a jury -in deciding.it: Town of South Ottawa v. Perkins, supra; Gardner v. Collector, supra; Jones v. United States, 137 U. S. 202, 216, 11 Sup. Ct. 80, 34 L. Ed. 691; Walnut v. Wade, 103 U. S. 689, 26 L. Ed. 526. 'The mecms whereby the judicial-mind is s5advised .aS-to be able, consistently with - the -'-irrefutable- presumption and-aá- ■ sumption that the courts know the-latv; to respond do .the inquiry involving- the ewist-enc&'-of'R statute,-etc, is, in - "a" sense, : -eCTcieitce,'-'"leading-'---to "'a"'‘finding/; of law, not of -fact.-Walnut v. Wade, 103, U. S. 689, 26 L. Ed. 526..“Any particular state maypby-its CÓBstitu- ' tion- and - laws, - prescribe 'what ‘ - shall- ;be - -cpn elusive- - Evidence-oí the existen'ce-or non-existence'oí a 'Statute;'but the, question of-such- existence-or non-existencevbeilig’a judicial-one in its'nature; the-mode-of as’eertáining'an'd using that evidence -must'rest' in'-the sound discretion-1 of .'the court- on which -the’ -duty ■ in' any -particular case ’ is imposed.'” • -, - ■. "........
Of the character; generally'-speaM-ngyof-'the-evidencié, properly advisory of- the judicial-- mind in;:respect'-tb matters of judicial cognizance, it is said in White v. *610Rankin, 90 Ala. 541, 8 South. 118: “If- the cognizance extends beyond actual knowledge, the judge may resort to any authoritative sources of information, and- inform himself of the fact in any way he may deem best, in his discretion,” etc. In Gardner v. Collector, supra, it Avas said “that, whenever a question arises in a court of laAV of the existence of a statute, or of the time Avhen a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory ansAver to such question, always seeking first for that Avhich in its nature is most appropriate, unless positive law has enacted a different rule.” The doctrine of this decision Avas favorably noted in Walker v. Griffith, 60 Ala. 367. To like effect is Town of South Ottawa v. Perkins, 7 Ency. of Ev. pp. 961-963, 1031, and notes thereon.
It is hardly necessary to add that rules of laAV pertaining to the introduction or admissibility of evidence in trials of ordinary issues of fact have no effect or bearing, when the judicial mind seeks or is seeking to avail of information to enable it to exercise judicial knoAvledge. — 7 Ency. of Ev. p. 879, and notes thereon.
Under our organic laAV, to the executive is apportioned an important part in the performance of the legislative- function. And it is entirely plain from the Constitution that the executive cannot delegate his part in the legislative process to anyone; for it is to the judgment of the person lawfully exercising the authority of the executive that the Constitution commits so much of the legislative function as it imposes upon the executive. The particulars and the extent of that legislative function, thus imposed upon the executive, is, so far as *611affects the present inquiry, to be found in section 125 of the Constitution. The section (125) is as follows:
“Every bill which shall have passed both houses of the Legislature, except as otherwise provided in this Constitution, 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 originated, which shall enter the objections at large upon the journal and proceed to reconsider it. If the Governor’s message proposes no amendment which would remove his objections to the bill, the house in which the bill originated may proceed to reconsider it, and if a majority of the whole number elected to that house vote for the passage of the bill, it shall be sent to the other house, which shall in like manner consider, and if a majority of the whole number elected to that house vote for the passage of the bill, the same shall become a law, notwithstanding the Governor’s veto’ If the Governor’s message proposes amendment, which would remove his objections, the house to which it is sent may so amend the bill and send it with the Governor’s message to the other house, which may adopt, but cannot amend, said amendment; and both houses concurring in the amendment, the bill shall again be sent to the Governor and acted on by him as other bills. If the house to which the bill is returned refuses to make such amendment, it shall proceed to reconsider it; and if a majority of the whole number elected to that house shall vote for the passage of the bill, it shall be sent with the objections to the other house, by which it shall likewise be reconsidered, and if approved by a majority of the whole number elected to that house, it shall become a law. If the house to which the bill is returned makes the amendment, and the other house declines to pass the same, that house shall proceed to reconsider it, as *612though the' bill had originated therein, and such proceedings shall be taken thereon as above provided. In every such case the vote of both houses' shall be' determined by yeas and nays, and the names of the members voting for or against the bill shall be entered upon the journals of each house, respectively. If'any bill shall not be returned by the Governor Avithin six days, Sundays excepted, after it shall have been presented, the same shall become a lavv in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent the return, in Avhich case it shall not be a law; but Avhen'return is'prevented'by recess, such bill must be returned to the house in Avhich it- originated' Avithin tAVo days after the" reassembling, othenvise it shall'be a laAv, but bills presented to the Governor' Avithin five days before the final adjournment Of the Legislátüre may be approved by the Governor at any time'within- ten days after such adjournment, and if approved and deposited AAÚth thé'Secretary'of- State'within*that time'Shall become laAAú Evéry vote, or’d'er, oh resolution to- Avhich concurrence'of both houses may bé "netíessary, except on questions of'adjournment and-the brifiging On'of elections' by the 'two houses, and amending this Constitution, shall be pT'e'sented to the' Governor; "and, befor'e the. same shall’take1 effect, be-approved by- him; or, being-disapproved,"shall be repassed by both'houses according to” the rulés and limitations prescribed iii th'e case Of a bill.” •" • ■ '■■ ■ ; ■= 1 : ■ .
Omitting consideration of ^appropriation bills,” for Avhich special provision is made’ (sebtion 126), the executive- may, Avithin the time'prescribed, take: oné of several- courses) as he may be advised, with respect to a bill ■presented to him, viz.: (á) Permit it to beconie a' law by withholding therefrom his approving signature' until -the period prescribed has elapsed; '(b)' approAÚ the bill *613by signing .it within the period prescribed; (c). return the bill, without signing and within the period prescribed, to the house in which it originated, with his objections thereto and such amendments as would obviate his objections; (d) within the period prescribed return the bill to the house originating it, proposing no amendment which would remove his objections. The last two alternatives are, in effect, affirmative disapprovals — -a veto — though the subsequent legislative course is different in the two instances. In the former, it is the legislative right to consider and determine whether the amendment seasonably proposed by the executive shall be accepted by the legislative bodies; while in the latter the legislative right is to decide ivhether the bill shall pass, notwithstanding the seasonably expressed, executive objection, in which event, to make the bill a law, a majority of the elected membership of each house must vote to that end. The alternatives enumerated are executive prerogatives, the exercise of which no other department of the government can hinder or impair, much less defeat. And it is the duty and supreme province of the judicial department, in its proper sphere of interpreting-the Constitution and of deciding .what is the law, when properly invited to so determine, to pronounce in accord with the requirements of the organic law, and to protect and effectuate the powers and functions assured thereby to each department of the- government.
It is not open to question or to doubt that the reference to adjournment, in section 125, is to final adjournment — the end of (for) the session stipulated in the organic. law; and that the reference to recess is to suspensions of legislative deliberation (by the house to which the executive return of the bill may be made) for some measure of time beyond one day. It is equally as clear that the return of a bill, by the executive, must be to *614the body — the house — in its organized capacity, and not to an official, or other representative, of the body to which the executive may make, within his prerogative, his return of the bill.
Three periods, two controlled by contingencies, are allowed the executive for his action or nonaction, leading to the legislative consequence before indicated. lie must, if he would prevent the bill’s becoming a law by his nonaction, properly return it “within six days, Sundays excepted.” Since Sundays are expressly excepted, and since that day is universally respected by all the departments of the government, it is clear that the six-day limitation for the return of bills contemplates calendar days. But since, also, the executive return of a bill must be to the house originating it, when in session, to avail of the power given him to that end, the return on the last or sixth day must be effected, if that body is in session, on that day; hence to that extent the full calendar day, on the sixth day, must yield to the other mentioned requirement of the organic law. If such was not the rule, the limitation of six days for the executives action would be prolonged beyond that expressly provided for by the Constitution. The general publicity of legislative action, the proximity, though separate, of the executive offices to the places of legislative deliberation, and the necessarily constant communication, in the discharge of the respective public duties with which those departments are mutually concerned, between those departments refute the suggestion that either body of the lawmaking department could assemble on a day without such knowledge of the executive as would enable him to return a bill as he might be advised.
If the house in which the bill originated is in recess on the sixth day after the presentation of the bill to the executive, two days after reassembling are allowed him *615in which to return the hill, which opportunity for action, if not availed of, permits the bill to become a law. The two days thus stipulated must, in consequence, be days on which the body originating the bill is in session.
There is still another period provided for in section 125, and that relates to the limitation for the approved of bills by the executive after final eedjournment of the Legisledure. That period is ten days. These are calendar days of course; no return to the body originating the bill being contemplated or possible. But this period is conditioned on the presentation of the bill to the executive “within five days before final adjournment of the Legislature.’ Obviously the stated five-deiys prescription is a condition precedent to the executive right to approve emd deposit the bill, as a leeio, with the Secretary of State, during the ten eleeys after fined adjournment.
It is insisted by counsel for the respondents that the presentation prescribed in section 25 contemplates and requires that bills be “presented in fact to the Governor in person,” and this upon that which is unwarrantably (though in the abstract it is obviously sound) assumed to be the premise, viz., that in the process of legislation the executive’s undelegable judgment and discretion is the constitutional intent. That contention is wholly untenable upon reason and authority.
The transmission of a bill from the Legislature to the executive is particularly referred to five times in section 125. This act of transmission is required, in four instances, by the usé of the term “presented.” In prescribing Avhat shall be done Avith a bill to which the executive have proposed amendment, and in Avhich amendment, both houses concur, it is Avritten, “the bill shall again be sent to the Governor and acted on by him as *616other bills.” While the direction for transmission is there prescribed by the word “sent,” the immediately following provision .expressly commits the bill, so-amended upon the executive’s proposal, to the identical category, subjects it to the same provisions, in which are “other bills;” and thereby clearly negativing any notion that bills amended by the Legislature, on the seasonable proposal of the executive, occupy any character or status, with respect to executive action, different from that of “other bills.” It is evident from this use of “sent,” as stated, that the Constitution makers-never intended, through the mere employment of “presented,” to invest the process of transmission of a bill to the executive with the strictness a literal translation the term “present” in some instances imports. In short, the use of “sent,” in reference to the same character of act with respect to which “present” is employed is forceful to show that “present” was not regarded as. having any particular, strict significance; and that the obligation imposed on the Legislature is discharged when a bill that has been passed is “sent to the Governor,” a distinct conceit fr.om that expressed in the literal interpretation of the personal proffer or delivery of it to the executive, wherever he may be searched out and found. “Presented” has had place, in the connection with which we are now concerned, in each of our Constitutions since the. admission of the state into the Union. In-the natural order of things, every bill passed by the Legislature (or. General Assembly, as formerly called) during 90 years of the states life has invoked the construction, observance, and application, in legislation, of the provision of the organic law of which presentation of bills to the executive has been and is now,, in substance, a part.
*617Contemporaneous and practical construction or interpretation of constitutional provisions by the executive and legislative departments of the government will and should be considered by the courts in passing upon constitutional questions; and, though not accepted, except as to questions of a discretionary character, by the courts as conclusive, such practical, contemporaneous construction by departments particularly charged with the observance or execution of the provision under consideration, and acquiesced in for a great period of time, is of peculiar potency in the make-up of the judicial construction, provided the practice be not in contravention of the clear constitutional intent. — Cooley, pp. 102-107; 8 Cyc. pp. 736-739, and notes thereon. If, under a constitutional provision with the observance or execution of which the executive and legislative departments are concerned, a distinct practice has- been observed or prevailed, it cannot be a matter of doubt that the reordination of the provision in a subsequent organic law necessarily brings with it for the consideration, by way of advice, of the judicial mind, in the interpretation or construction of that provision, the well-understood practice Avhich has been pursued by those departments in the effort, in presumed good faith, to carry out the mandates, and to respect the restraints, of the Constitution, unless, of course as has been stated, the clear intent of the provision, Avhen read in the light of the Avliole instrument, forbade or forbids the practice so pursued. If, as has been ruled by the highest judicial authority in our country, general customs and . usage have the force and effect of Iuav, if not .opposed to positive laAV (United States v. Arredondo, 6 Pet. 691, 8 L. Ed. 547; Slidell v. Grandjean, 111 U. S. 412, 421, 4 Sup. Ct. 475, 28 L. Ed. 321), obviously the best Avisdom commends to the judicial mind, called to interpret consti*618tutional provisions, of long existence and execution, of the class now under judgment, the ascertainment and consideration of the practice thereunder by those whose duties required their observance or excution of such provisions. Reason not only suggests this aid to constructions, but that and a proper regard for orderly processes in government demand the taking account thereof as a conservative means of discovering the true constitutional intent. .The principle has been pointedly recognized by this court in Taylor v. Hutchinson, 145 Ala. 202, 206, 40 South. 108; Ex parte Hardy, 68 Ala. 303, 318; Moog v. Randolph, 77 Ala. 597, 606; Farrior v. New Eng. Mortg. Co., 88 Ala. 275, 279, 7 South. 200.
In determining whether the presentation, under section 125, of bills that have passed the houses to the executive requires their proffer or delivery to him in person, or whether the constitutional prescription is met by the lodgment of bills that have passed the houses in the executive office, and with a member or members of the executive secretarial force, it is the duty of the court, called to construe and to interpret and to give effect to the constitutional requirement of such long existence and obligation, to advise itself of the practice pursued by those departments of the government in respect of the transmission of bills to the executive.
Besides numerous persons who have served in the legislative department, and who have been long familiar with the process of transmission of bills to the executive, our citizenship at this time numbers five former executives of the state, Adz., Hon. Rufus W. Cobb, Thomas G. Jones, Joseph F. Johnston, William D. Jelks, and Braxton B. Comer, who, Avith the present executive, Hon. Emmet ONeal, are peculiarly favored to speak, and that Avith every assurance of the utmost *619credibility, with reference to the practice of the presentation of bills for executive consideration, and so for periods, though disconnected prior to 1896, beginning-in 1878 and extending to the adjournment of the Legislature in 1911, covering approximately 20 years of the life of the state. One of these eminent citizens, Hon. Thomas G. Jones, was a member of the convention which wrote the present Constitution, and chairman of the committee reporting section 125, among others, of that instrument. From these sources, together with such pertinent and reliable documentary matter as may be available to satisfy the judicial mind, should this court seek for information as to the practice in respect of the presentation of bills to the executive consideration.
If, as the writer is advised, the long-recognized general practice in the premises has been to lodge bills that have passed the houses in the executive office with one or more of his official force, its receipt and the date thereof being noted by the receiving official, upon the enrolled bill, or entered in a book kept for that purpose, or both being done, and no practice to the contrary is discoverable, the plain duty of this court appears; and that is to accept the interpretation of the constitutional provision that has thus long prevailed and hence pronounce such a lodgment of a bill in the executive office, with his official force, a valid presentation, within the Constitution, squaring Avith the obviously sound and immediately authoritative ruling made in the comparatively recent decision of State ex rel. v. Porter, 145 Ala. 541, 547, 40 South. 144, 145, where it is said, Justice Anderson Avriting: “The laAV provides-that the petition must be presented to the Governor, meaning that it must be lodged Avith him or his official force in some formal manner, so as to become an official document.” *620(Italics supplied..) In that instance, the personal,, nondelegable, judgment of the executive on the matter of the petition was the law’s, prescription, just as,, in the performance of his constitutional function with respect to the making of laws, the executive personally must determine the matters within his prerogative.
If “presented,” in section 125, is interpreted to mean and require the proffer or delivery of the bills to the executive in person, patently no statute -can be constitutionally enacted that would or could permit the presentation of bills other than to the executive in person. So that the consequence of that conclusion upon the meaning of “presented,”- in section 125, cannot be qualified or temporarily avoided by recourse to or hope for legislative relief from the condition thus wrought; nor could the executive delegate to one or more of his official force the power to accept, in his stead, presentations of bills that have passed the houses.
The meaning and effect of the constitutional requirement for the presentation of bills to the executive, and when there has been such presentation as the organic law contemplates, was considered, in 1864 in the opinion of the justices on the .constitutional validity of the soldiers’ voting bill, 45 N. H. 607, 611, 612. One of the concrete questions propounded to the justices was this, “(3) When was said bill presented to the Governor?” Treating the inquiries submitted “as upon a case stated,” the opinion thus rehearses the facts assumed to be established: “That said bill originated in the House of Representatives, passed both branches of the Legislature,. was duly engrossed, signed by the presiding officers of both branches, and about noon on Wednesday, August 17, 1864, was carried by the assistant clerk of the Senate to the executive chamber, in the state house, in accordance with the customary mode of presenting *621bills to the Governor, and was laid upon the table of the Governor, who Avas then absent from the room, but who had been there during the' morning, and was expected to return that afternoon, but did not; that when said bill Avas thus laid upon the Governor’s table some members of the executive council Avere present, and also Mr. Barrett," the State Auditor, who Avas the son-in-law of the Governor, and Avho liad á table there in the executive chamber for the transaction of his business, near that of' the'Governor; that the assistant clerk of the Senate, Avhen he entered the executive chamber Avith said bill, announced that he had a bill for.the Governor; that the Governor saAV said bill on'Thursday, August 18th, Avhen he came into' the executive ’ chamber and found it Upon his table there; thát both houses adjourned from Saturday; the '20th, "to Tuesday, the 23d, of August, and Aver’e not in session oh Monday, August '22d;' thát,"oñ 'Wedneseday, August' 24 th, in' the aftérnobn, thfe Governor sent á message to the House of Representatives by Mr.' Sinclair, a member of said House, who gave'notice' to the speaker, in the House, when in session,* tliat'lie' had ’a unésSagé from the Governor to present; that the Speaker declined to receive it from linn;1 that said mésságe was not'received by any action Of the Speaker of 'of' the House, 'ahd' was nót read in their hearing,'but that, neáf the ¿lose'of th'e session that 'afternoon,'while the'yb'as and‘náys Aveie being taken Oh "á motion’ to adjourn., Avhich-aVus decided in the'affirmative; • the Secretary of State laicV'said message ‘ Oh ‘ the ' Speaker’s table, státiñg 'it "to be a message' from hiS excellency, "the Governor; tliát this message" ivás ' not opened' of read in the House, but was afterwards; on á subsequent day, referred to'a select committee; and thát in this message of the Governor he stated his objections to the bill in question, and returned said bill therewith to the House.”
*622The constitutional provision [part 2, art. 43] involved was as follows: “Every bill which shall have passed both houses of the General Court, 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 that house in which it shall have originated. * * * If any bill shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature, by their adjournment, prevent its return, in which case it shall not be a law.”
It thus plainly appears that a vital factor to proper response to the inquiries submitted, specially that quoted above, was the determination whether the presentation required was a proffer or delivery of the bill to the Governor in person, the facts showing that the bill did not come to the Governor’s personal notice or attention uniil August 18, 186J¡; whereas, the bill was transmitted on August 17, 1S6-I, to the Governor’s office and “laid upon the table of the Governor, who was then absent from the room,” not returning thereto, as had been expected.
The justices ruled that the bill was presented on August 17, 1864; whereas, had a presentation to the executive in person been the mandate of the organic law, the bill there under consideration would have been held not presented until August 18, 1864, the day and date the executive saw the bill. It was there said: “But it would be absurd to hold that the officers of the Senate and House of Representatives are obliged, in order to perform their duty, to follow the Governor Avherever he may chance to go, AArhether in the state or out of it, upon his private business as well as public, and present bills to him in person, wherever he may happen to be.”
*623It is common .knowledge that this state provides offices for its executive in the state house. The laws provide for a messenger to the “chief executive office,” and for servants for the executive offices at the capitol.— Code, §§ 561, 563. A private secretary and a recording secretary are also provided for. — Code, § § 555, 556. Indeed, every convenience for the consideration and dispatch of the public business with which the executive may be concerned is afforded at and for the office of the executive in the state house. There is universal public acquaintance with the fact that quarters and the official force of the executive are in the state house. It is just as universally known and expected that the executive quarters is the place at which it is the duty and practice of the executive to attend and consider his pxiblic duties. These matters of general knowledge underlie and support the conclusion with respect to the sufficiency of presentation which is before quoted from State ex rel. v. Porter, 145 Ala. 547, 40 South. 144.
The wholesomeness and rationality of this view of the constitutional requirement for the presentation of bills to the executive invited and received the approval of the Supreme Court of Louisiana, in State ex rel. Michel, 52 La. Ann. 936, 27 South. 565, 48 L. R. A. 218, 78 Am. St. Rep. 364. The headnotes of the decision were prepared by Justice Blanchard, who wrote the opinion for the court. As is perfectly apparent from the opinion, it was not only proper but necessary that the constitutional provision of that state, with respect to presentation of bills to the executive,- should be construed. The first headnote is as follows: “(1) A bill Avhich has passed both houses of the General Assembly, and been signed by the presiding officers thereof, is presented to the Governor, Avithin the meaning of the Constitution, Avhen the clerk of the House of Representa*624fives or secretary of the Senate carries the same to the executive office, and offers or tenders it to the Governor ■or his' secretary ” (Italics supplied.) •• •
The reasoning of the court in that case aptly demonstrates that, if'a presentation to the executive' in person was affirmed as the constitutional mandate, the executive would be vested with the power, if he remained within the commonwealth (Const., § 128), tó defeat, by absence from his office,' or otherwise the presentation of bills to him, and thereby render wholly vain legislative work: " ' - ■ ' ■ ■'
In'thé opinion of the Justices of' Massachusetts (99 Mass. 636-638),'the pertinent section-of the Constitution of that state was construed1-as requiting that bills that havé passed “must” to become law,'“De laid before thé Govenibr personally.^' ’The constitutional' provision there cóhstruéd'provided “th'a'fno 'bill'-shall become a law,“and have'force aS such, wftil it shall have been-laid before the Governor'f8t his rev’isdly *■ * and in ■order ■ to prevent unnecessary "delays; if' any-bill shall not be returned by the Governor,, within five days after if'shaH'haVe been■ presented'/ the samé' shall'have the force of Iaot:” !(Italics Sitpplied.)' ••That provision was, as appeals,'not thifcohhie'rpárf 'of•’ours"'; for the presen'tation'latteriy mentioned in'the'Organic law of that "state whs colored" 'in Piéáning and"effect 'by' the; preceding reqhir'em'ent that'bills; 10 become law; should'be laid ’before' 'the Góv'érhot. ¡"And'the''response' given'by the ■justices ’appears-'not 'to have'taken aCCOuht Of a longrecoghized'practice, bv- the departments'"concerned, of lodging bills with the executive''secretarial force in the executive office. — State v. South Norwalk 77 Conn. 257, 264, 58 Atl. 759.
' What the view 'of the justices would have been, had the practice indicated long prevailed under tliat provis*625ion of that Constitution, and then the reordination thereof effected in a later organic law, cannot be discovered in their opinion. In short, the question determined there had not the factors of constitutional terms and long-recognized practice and of reordination of those terms that must be considered by this court in this instance. On the concrete question propounded to them, viz., whether presentation to an “independent officer” (Secretary of State) was a compliance with the constitutional mandate there to be interpreted, there could be no real room for argument or doubt.
In State v. South Norwalk, supra, treating a constitutional provision very similar to our own, with respect to presentation of bills to the executive, the court said: “It cannot be deemed to have been presented to him until it has been in some way put into his custody, or into that of some one properly representing him, in such manner that he has reasonable opportunity to inspect and consider it.” The court then alludes to the statutory provision made, soon after the Constitution was adopted, for the proper presentation to the Governor at the executive offices during sessions of the General Assembly. This legislative action was interpretative only; for, if the organic law required a personal presentation to the Governor, the lawmakers were powerless to alter the requirement, so as to allow the presentation to a representative of the Governor. The statutory interpretation in that instance should not be more forceful or valuable in aid of correct construction than the long practice in this state, to which allusion had been made.
In the light of these considerations, weighed with that caution with which courts of last resort Avisely proceed when invoked to interpret a provision of the organic law to an effect materially different from that great de*626partments of the government - have long attributed to, and executed it, the conclusion would seem to be.unescapable Unit the quoted, pertinent, pronouncement of State ex rel. v. Porter, supra, expresses the meaning and effect of “presented,” as that term appears in section 125 of the Constitution.
Was House Bill 323 presented to the executive; and, if so, when?
By the Act approved February 22, 1866 (Acts 1865-66, p. 88), provision was made for, among others, the compensation of these “officers in the executive departments of the state,” viz., “private secretary of the Governor” and “recording secretary of the Governor.” These positions appear to have had statutory recognition ever since, being provided for at this time by Code 1907, §§ 555, 556. These constitute the strictly secretarial force of the executive office. The selection of the person to serve in each of these places is committed to the executive, who; it is provided, may employ them, and nnry discontinue their services, in his discretion. — ¡Section 557. They have no fixed tenure. They serve at the pleasure of the executive engaging them. Some of the duties of the private secretary of the executive are prescribed by statutes. Those of the recording secretary are not particularly prescribed by statute. “A secretary is an official scribe; an amanuensis or Avriter; a person employed to Avrite orders, records and the like” — and the word “secretary” is, according to proper usage, synonymous Avitli “clerk.” — 7 Words and Phrases, p. 6381. From the statute-prescribed source of their selection, their unfixed tenure, and the Avords employed to designate them, these secretaries are obviously closely related to the person of the executive in his public service. They are his personal staff. The name “recording secretary” is indicative of the character of the service *627contemplated., of performance by the person employed for that position. When coupled with “secretary,” it is clear that the descriptive word “recording” intends a public servant, whose duty should he to enter or keep the record, of the executive office. — Montgomery Beer Bottling Works v. Gaston, 126 Ala. 448, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rp. 42. Performing public duties of the gravest importance, among which are those concerning the legislative function prescribed by section 125 of the Constitution, it is apparent that the executive must have and cause to be kept records of official acts. It is inconceivable that so important a public service as the executive constantly performs could be performed without the-keeping of record thereof. The creation, at the public expense, of the position of recording secretary is alone conclusive, not only of the necessity for a record to be kept of executive official acts, but that such a record is, in fact, kept by that secretary. Surely it. cannot be assumed that the expense of compensating a recording secretary to the executive would be charged'upon the public treasury if the service his official title suggests was not to be performed by him.' It may, hence, be asserted with every assurance of correctness that the creation of a recording secretaryship is as emphatic an expression of the executive necessity and duty of the keeping of a record of his official acts, etc., as would have been a legislative command that the executive cause to he kept a general record of the official proceedings, as was the statutory requirement in Ohio, alluded to in Wrede v. Richardson, 77 Ohio St. 182, 82 N. E. 1072, 1074, 122 Am. St. Rep. 498. And consulting the relevant custom prevailing in the executive office, as should be done, and as was done in Wrede v. Richardson, supra, it is known that, in the performance of his service in the executive office, the recording. *628secretary’s duty and practice, under the present executive administration, was to receive bills that had passed the houses, and that were brought to the executive office for the executive consideration, and to receipt the legislative clerk or messenger therefor, and that the recording secretary kept a book in which he entered the date of such' delivery of the enrolled bill to him, and that a stamp was also provided and customarily used wherewith to stamp, upon the enrolled bill itself, the fact and date of reception of the enrolled bill in the executive office. Under these circumstances, it is evident that writings made by the recording secretary, in his official capacity, are public records; and so even under ■strict rules of evidence, serviceable upon the trial of ordinary issues of fact, that are not to be thoughtfully •doubted.
It has been suggested that a. writing, to be a record ■and admissible in evidence, must be kept or made under statutory authority or command. Recourse to the highest authority on the subject demonstrates that such is not the law. “Although a book kept by a public officer is not required to be kept by any statute, yet, if it is necessary or proper and convenient to the adequate discharge of his duties, it is an official book, and admissible ■as such to prove the facts therein stated. So entries or indorsements which are necessary to a proper discharge of official duty are competent, though not expressly authorized or required by law.” — 10 Ency. of Ev. pp. 716, 717, and notes thereon; Sandy White v. U. S., 164 U. S. 100, 17 Sup. Ct. 38, 41 L. Ed. 365; 1 Greenleaf, §§ 483-485; Evanston v. Gunn, 99 U. S. 660, 665, 25 L. Ed. 306; Jones on Ev. §§ 508, 509.
In Sandy White’s Appeal, supra, one question was whether book entries made by a jailer, showing the names and dates of prisoners received and discharged, *629were admissible in evidence on tbe trial of tbe defendant, who was charged with presenting’ false, fictitious,, and fraudulent claims against the United States. The court said: “We think no error ivas committed by the trial court in this ruling [i. e., in admitting in evidence the jailer’s entries]. It was not necessary that a statute of Alabama should provide for the keeping of such a book. A jailer of a county jail is a public officer, and the book kept by him was one kept by him in his capacity as such officer, and because he was required so to do. Whether such duty was enjoined upon him by statute or by his superior officer in the performance of his official duty is not material. So long as he was discharging his public and official duty in keeping the book, it ivas sufficient. The nature of the office would seem to require it.”
The rule is thus set down in Evanston v. Gunn, supra: “* * * Official registers or records kept by persons in public office, in ivkick they are required, either by statute or by the nature of their office, to write down particular transactions occurring in the. course of their public duties or under their personal observations, are admissible in evidence. To entitle them to admission, it is not necessary that a statute requires them to-be kept. It is sufficient that they are kept in the discharge of a public duty. — 1 Green. Evid. § 496. Nor need they be kept by a public officer himself, if the entries are made under his direction by a person authorised by him.” (Italics supplied.)
When it is remembered that the executive duties and prerogatives established by- section 125 are of such grave importance in the making of laws that they are restricted, for seasonable, effectual exercise, to a stipulated period, that they are almost constantly invoked for application during a legislative session, that them *630exercise naturally involves, in the.executive view, fidelity to the public policies to which he has, before the electorate, committed and obliged his administration, that the multitude of executive duties, along with those imposed by section 125, forbid even the effort to retain in memory the executive .acts, much less the inception of the limitation periods stipulated in section 125, it may be said to be unimaginable that the executive functions, particularly with respect to the duties imposed by section 125, could be performed, with any approach to orderliness, without the keeping of a record thereof. The nature of the office of chief executive, and of that of its subordinate, intimately related functionary, the recording secretary, requires the keeping of records, the entry and indorsement, of official acts, and of processes leading thereto.
The like considerations and conclusions apply to a book kept by the clerk or messenger of the respective Houses, wherein the recording secretary receipted for bills transmitted to the executive office, in observance of the requirements, in that regard, of section 125 of the Constitution. Such a book falls within the provision of Code, § 909, which reads: “At the close of each session, the secretary of the Senate, and the clerk of the House of Representatives, and Secretary of State, must select all papers belonging to the Legislature, except such as relate to unfinished business, and deposit them in the office of the Secretary of State.” Such papers are, of necessity, public documents; and their required deposit with the Secretary of State refutes the notion that such documents were or are the mere private memoranda of those who serve the houses in clerical capacities. — Code, §§ 909, 912. This is particularly time of the receipt book, kept by legislative officers, of bills transmitted to the executive office — an act *631(transmission) required of the Legislature in the performance of its functions under section 125 of the organic law.
The following records, kept, or made by officials in their official capacities, show that the enrolled House Bill 323 was transmitted to the executive office on March 22, 1911, and delivered to the recording secretary of the Governor; (a) The receipt thereof and therefor, by the recording secretary, in the receipt book'kept by the enrolling clerk of the House of Representatives of enrolled bills so transmitted, which receipt book is now deposited in the office of the Secretary of State, (b) The book kept by the recording secretary of the Governor, in which he entered the date of the receipt, by him, of the enrolled bill so transmitted from the Legislature to the executive office, (c) The following words, indorsed by the recording secretary on enrolled House Bill 323: “No. 162. Received March 22, 1911, Governor’s office.” The number “162” being the Governor’s number. From the “record book” kept by the recording secretary (Mr. Nunnellee), he testified that the enrolled bill left the executive office March 31, 1911. The executive’s message, before mentioned, with respect to House Bill 323, bears the like date; and the House Journal, as previously stated, Shows that to have been the date of the return of the bill by the executive.
From these public records, made by public agents in the orderly process of-promoting and invoking, according to constitutional mandate (section 125), the executive’s legislative function in the enactment of laws, it appears with absolute certainty that Plouse Bill 323 was presented to the executive on March 22, 1911.
The presentation on March 22, 1911, being established and effected, the constitutional limitation, within which the executive must have acted in order to avert *632the bill’s becoming a law, began to run against executive action. Obviously the Legislature was powerless to suspend the running of the limitation. Aside from the recall of the bill from the executive custody and his return of the bill in accordance with that request, the only action of the Legislature by which the limitation (for executive action) could be affected was by recessing.
The sole effect of a recess, as plainly provided by section 125, is to add two legislative days, where return within the six-day period is prevented by recess of the house originating the bill. There is no semblance of warrant in the organic law for the notion that the Legislature may suspend the running of the limitation; it having once begun. The result necessarily is that by the very letter, expressive of the clear spirit and purpose, of the Constitution, the omission of the executive to act on the bill within the prescribed period after presentation makes it a law — constitutes the bill an enactment. If the Legislature might pronounce otherwise, the legislative will, and not the Constitution, would be supreme. If the Legislature may treat a bill presented to and retained beyond the period by the ex-cutive as still in fieri, still subject to the mold of legislation, when in record-established fact it has passed, under clear constitutional pronouncement, that stage,, it cannot be said that the Constitution is the paramount law of this state. Given a presentation of a bill to the executive, which presentation has not been withdrawn by perfected recall of the bill, the constitutional limitation begins; and, if not interrupted in one of the modes thereby (section 125) prescribed, the bill becomes a law. To hold otherwise would subvert the organic law in respect of its plain provisions.
*633The House originating Bill 323 was, as shown by its Journal, in session on March 29, 1911. March 25, 1911, was Sunday. Hence the last (sixth) day on which the executive might return House Bill 323, and thereby prevent its becoming a law as signed by the presiding officers of the houses on March 22, 1911, was March 29, 1911. Not having returned the bill till, as is shown with all certainty, March 31, 1911, the bill, as presented to him on March 22, 1911, became a law, and so by express mandate of the organic law.- — Section 125.
The idea that the Legislature on March 31, 1911, approximately two days after House Bill 323 became a law, might or did, by necessary or reasonable implication from its unqualified action on the amendment proposed by the executive on March 31, 1911, investigate and determine conclusively that the executive return of the bill was seasonable, is, as before indicated, wholly untenable. The bill having been presented so as to require its return by the executive not later than March 29, 1911, if the Legislature had solemnly pronounced, on March 31, 1911, that the executive return was within the prescribed time, it would have been utterly vain, unless it could be affirmed that, notwithstanding constitutional limitations and mandates, the Legislature may conclusively declare that an act is a bill, and not a law, Avhich in truth and fact had, pursuant to constitutional provision, become a law. The Constitution is the supreme laAV to all departments of our government. And it is finally accepted here “that, under our Constitution, a bill becomes a law only after it has passed through all the forms prescribed, and made necessary to give validity to legislative enactments.”— Stein v. Leeper, 78 Ala. 517, 521; Jones v. Hutchinson, 43 Ala. 721; Moog v. Randolph, 77 Ala. 597. Under our Constitution, that Avhich has become a law cannot be *634changed.or amended by legislative action taken otherwise than in the manner and according to the constitutional prescriptions for the enactment of laws, which is by bill formulated, in title and substance, as ilie organic law prescribes, and conformable to the rules of committee consideration and' passage which that instrument particularly requires.
It has been suggested that to accept the specified record evidence of presentation of this bill on March 22, 1911, institutes a conflict with or contradiction by the journals of the houses. In the journals of the houses, there is no reference whatever to the matter of seasonable return of this bill by the executive. It is by attributing to more action, by the Legislature, upon the amendment proposed by the executive that the journals are said to express anything anent the seasonableness of the executive return of the bill. The journal is an official narrative of the proceedings of the respective houses. — State ex rel. v. Greene, 154 Ala. 249, 46 South. 268.
It is common knowledge that the executive of this state does not sit with the Legislature, and that his offices are removed from the legislative chambers. It appears, also, that the Constitution makers were particularly cognizant of these facts, since they provided for the transmission of bills that had passed the houses to the executive by such verbiage as necessarily imports the idea of his removal from the presence of the houses. The presentation of bills to the executive being, therefore, an act transpiring outside the presence of the houses, the fact thereof could have no place on the journals of the houses; and in consequence even an assertion (not here present) of the fact of presentation, with its date, upon the journals of the houses would be matter foreign to the journals; for the houses, unless pre*635sentation was made in one or botli of them, cannot record a fact occurring elsewhere. What verity or effect would or should be given the journal record of a report, in regular course of legislative work, by a messenger or officer cf one or b fill of ilie houses, reciting that he had presented a certain bill to the executive in accordance with section 125, when that report is in conflict with executive records, would raise questions not pertinent here; for no such report appears to have been made or spread upon the journals of either house. In fact, the receipt book kept by the enrolling clerk of the House of Representatives conforms, in respect of the date of pre-. sentation of House. Bill 323, to the records kept in the executive office, and to the fact of presentation indorsed on the enrolled House Bill 323.
It has been also suggested, as upon the authority of Robertson v. State, 130 Ala. 161, 30 South. 494, Ex parte Howard-Harrison Iron Company, 119 Ala. 484, 24 South. 516, 72 Am. St. Rep. 928, and Montgomery B. B. Works v. Gaston, 126 Ala. 425, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rep. 12, that the act as promulgated, coming as it does from the custody of the proper custodian of enactments of this state, its journal history fair, and bearing the approving signature of the executive, must be finally accepted by the courts as duly enacted in all particulars; fraud or forgery not being shown in respect to it. None of these decisions should or do control the conclusion on the question here involved. In Ex parte Howard-Harrison Iron Company, the question was whether the bill approved by the executive was the bill, not materially variant from the bill, passed by the houses. It was ruled that the presumption favored their identity; and that that presumption could only be overcome by the journals kept by the houses. Obviously that ruling was sound; for the *636highest and only evidence of what bill the houses passed were the journals thereof.
In Montgomery B. B. Works v. Gaston, the contest invoked the decision of the question whether the houses passed or adopted the same bill. It was necessary, in determining this question, to ascertain what was the journal; whether it was the loose memoranda kept by the clerks, or. the compiled and bonnd volume. It was held that the bound volume was the journal; and, consulting it as the conclusive evidence of legislative action by the houses, the view prevailed that therefrom it ap.peared that the lower house had not adopted the Seriate amendments, and thereby, as of course, leading to the constitutional invalidity of the enactment.
In Robertson v. State, these objections, as leading to constitutional invalidity, were asserted: (1) That the act was “wholly changed in its title and purpose during its passage through the” lower house; (2) that it was not read on three different days in either of the houses; (3) that it was not signed by the Speaker, its signature being by the Speaker pro tempore, Mr. Tunstall; the Speaker, Mr. Pettus, being ill at the time. The.court held the act valid, and so in respect to the objections other than the last (third), upon the authority of the mentioned two decisions in 119 Ala. 484, 24 South. 516, 72 Am. St. Rep. 928, and 126 Ala. 425, 28 South. 497, 51 L. R. A. 396, 85 Am. St. Rep. 42.
In these cases, presenting the questions stated, it cannot be that this court ruled or intended to rule that matters necessarily and invariably, according to common and judicial knowledge, occurring in the executive office, removed from the legislative chambers, could or should properly appear upon the journals. By no sort of assumption could that be affirmed of these decisions. They did not, even remotely, invite the construction of *637section 125 in the particular with which this appeal is concerned. Whether the acts there considered became law, under the limitations and prescriptions of section 125 for executive action, was not involved or taken into account in any way. These cases, however broad their language, are without bearing here. This doctrine is, however, too deeply imbedded in our law to be now doubted, much less disturbed: That no bill can become a laio until it has been enacted according to the forms prescribed by the Constitution. Whether, in a given case, those forms have been observed is essentially a judicial question. — Author, supra.
When the constitutional prescriptions are such as the houses are required to observe, and their observance is shown by the record (the journals) thereof, the courts accept finally the assertions of that record. This according to the wholesome notion of verity with which the courts are accustomed to view the’ memorials of tribunals jurisdictioned to make them.
The right of the Legislature to act upon an amendment proposed by the executive is particularly prescribed in section 125. The condition to that right is the executive return of the bill, with his proposed amendment, Avithin the period prescribed. The consequence of delay in this particular beyond the period is that the bill adopted by the houses, and signed by the presiding officers thereof, becomes a law.
The right of the executive to return a bill, with proposed amendment, depends upon his action Avithin a prescribed period. The right of the executive to veto a bill, thereby preventing its becoming a laAV, unless subsequently reconsidered and passed by the houses as the organic laAV requires, likewise depends upon his action within the prescribed period. Each right is limited, restricted, to a definite period. Beyond that period, nei*638ther the executive nor the Legislature has any power or authority to defer, to defeat, or to alter the legislative will as expressed in the bill1 presented to him, except by a new enactment. These are constitutional restraints —mandates—just as supreme and binding as any others, to be found in that instrument.
Does mere presumption (to say nothing, at this time, of the refutatory executive records to which particular reference has been made) - of conformation to constitutional requirements in the enactment of laws conclude judicial inquiry, when pointedly invoked, whether the act promulgated became a la w in consequence of observance of constitutional commands?
When, as here, the executive action or nonaction, within a constitutionally prescribed period, is the determining factor, it is obviously no answer to say that this court has given a concluding effect to the journals of the houses-in respect to matters properly appearing upon them, cr that it has indulged, to finality, the presumption that, though the journals are silent, the rightful processes of legislation in the honses were observed.
In Sadler v. Langham, 34 Ala. 311, 322, it was ruled that the character of the presumption, of conformation to constitutional requirements by the Legislature, in the enactment of laws, was not conclusive — not conelu-' sive upon the judicial department, to which, in the division of governmental powers (the express restriction of each department to its sphere) such inquiries are committed by the organic law. — Const. §§ 42, 43.
If the stated, conclusive presumption should be accepted, it may be inquired whether those provisions of the organic law (section 125), whereby executive action is required within prescribed periods, as affecting the enactment of laws, are not bereft of any means or tribunal for their enforcement, or of any force in the con*639stitutional methods for the enactment of laws; whether the stated presumption has not stricken from the organic law these limitations and prescriptions, even the pronouncement that a bill, not seasonably returned; “shall become a law in like' manner as if he had signed it?”
If a promulgated bill, apparently valid, is assailed for fraud or forgery in respect of executive action thereupon, would the presumption stated shield it from judicial inquiry in the premises? If it would not, it may be inquired whether the nonobservance of clear constitutional mandates is not as fatal to valid legislation as the grave wrongs of the class to which fraud and forgery belong? If a litigant may, in promotion or defense of a right, say, “the executive did not sign, approve, that bill, though his name appears thereto,” ought another litigant, in promotion or defense of his right, be permitted to assert and show, by public records kept, in regular course, in the executive office, that the executive delayed his return or veto of the bill until the Constitution pronounced it a law “in like manner as if he had signed it?”
In this instance, relator contends that the presented (on March 22, 1911) bill became and is the law; while, on the other hand, the respondents assert that the bill, with the amendment proposed by the executive, became and is the law. The former’s insistence is justified by the public records of the executive office and that kept by the enrolling clerk of the House of Representatives; the bill, signed by the presiding officers of the houses on March 22, 1911, not having been returned by the executive within the period prescribed by the Constitution, became a law under the express mandate of the Constitution. Such being the case, the amendment proposed by the executive on March 31, 1911, and adopted by the *640liouses, never bad. tbe force of law; tbe orderly processes for tbe amendment or change of that wbicb was already a law not having been conformed to in tbe adoption of the amendment so proposed by tbe executive.
Tbe opinion is therefore entertained that tbe respondents were not and are not lawfully constituted commissioners of tbe city of Montgomery; that their appointments were and are without tbe sanction or authority of law, and hence were void.