dissenting in part and concurring in part.
I dissent from Part I of the majority opinion. The district court’s interpretation of the time frame involved seems reasonable to me, does less violence to the clear mandate of the Constitution, and should be upheld on appeal.
The problem in this case stems from the delayed presentment. The Constitution gives two different time schedules for vetoes, as pocket vetoes are not allowed. The Governor has either ten days after adjournment or five days after presentment in which to veto a bill.
The Constitution is very clear on the one alternative power, “in which case it shall be filed, with his objections, in the office of the secretary of state within ten days after such adjournment (Sundays excepted) or become law.” Idaho Const., art. 4 § 10.
Within ten days after adjournment means exactly what it says. The other way to veto a bill is within five days after presentment. In this case the Governor did neither.
The majority embarks upon a hypothetical situation which presents an abstract problem, but is not warranted by the facts. The bills in this case were presented to the Governor within three days after adjournment of the legislature as required by the rules. There is no reason to speculate as to what would happen were presentment delayed until after ten days from adjournment because that has not happened.
A similar argument was rejected by the Supreme Court of West Virginia:
The common practice of staying the hands of the clock to enable the Legislature to effect an adjournment apparently within the time fixed by the Constitution for the expiration of the term is dwelt upon in the argument as a serious trespass upon the rights of the executive in respect to the time allowed him for examination of, and action upon, bills undisposed of by him at the time of adjournment; it being pointed out that he might thus be deprived of the entire period of five days. In point of fact no serious curtailment of this period has ever occurred in the history of the state, and the assumption that it will ever occur would be a violent and highly improbable one. The Constitution was adopted by the people, with full knowledge of the existence of this rule of evidence, and no provision was inserted to protect the Governor or any person else from its operation and effect. How can we say they did not think it better for the public to take the risk of slight, or even great, abuse or perversion of it, than to innovate upon the rule, or that they did not rightly and safely assume that no substantial encroachment would ever be made by the Legislature upon the time of the executive in this way? In more than 45 years it has never yet occurred. The few hours so taken is in a practical sense no encroachment at all, since the Governor and Legislature may both work at the same time. If the evil should grow and become serious, the power of remedy is in the hands of the people rather than those of the courts.
Capito v. Topping, 65 W.Va. 587, 64 S.E. 845, 847-848 (1909).
The Attorneys General of Oregon have consistently come to the same conclusion on speculation concerning potential for abuse in a like case.
The argument was made that if bills may be presented after adjournment of the legislature there is nothing to prevent delaying the presentment indefinitely. The Supreme Court of Vermont adequately answered that argument by saying, 114 A. 44, at p. 50: “ * * * public officers are bound to perform their duties with diligence and fidelity. That they may act otherwise cannot be assumed as a justification for denying them the right to act at all.” We believe that this case answers the argument that if a bill may be presented to the Governor after adjournment, it could be presented so late as to defeat the veto power.
*416Opinions of the Attorney General of the State of Oregon, # 5204, p. 189, April 19, 1961.
I also note that former Governor Andrus was always previously able to review the work of the legislature within the ten days allotted. Secretary of State Cenarrusa has presented us with a table on gubernatorial action which is relevant in documenting this point.
In sum, I feel this case should be decided on the facts of what actually happened in the case and not upon speculation and conjecture as to what could possibly happen. The bills were not vetoed within ten days after adjournment, nor were they vetoed within five days after presentment. They should, therefore, become law, as the Idaho Constitution requires.
SHEPARD, C. J., concurs.